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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

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SCHOOL  OF  LAW 


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FORMS 


OF 


FEDERAL  PROCEDURE 


IN  THE  COURTS  OF 


THE  UNITED  STATES 


COMPILED,  ARRANGED,  AND  ANNOTATED  BY 

FRANK  O.  LOVELAND 

OF   THE   CINCINNATI    BAR 


CINCINNATI,  O. 

W.  H.  ANDERSON   &   CO. 

1894. 


T 
1-9427  f 


COPYKIGHTED,  1894, 
BY 

W.  H.  ANDERSON  AND  COMPANY. 


TO  MY  FATHER, 

DAVID  ANDREW  LOVELAND, 

THIS   BOOK   IS  DEDICATED  AS  A  TOKEN  OF  FILIAL  LOVE 
AND  AFFECTION. 


66V4£0 


PREFACE. 


"■  I  'HE  object  of  this  book  is  to  provide  the  profession 
*  with  practical  forms,  as  a  companion  volume  to  the 
many  Treatises  on  Federal  Practice.  A  large  number  of 
these  forms  were  taken  directly  from  the  record  of  causes 
in  dififerent  federal  courts,  and  have  been  thoroughly  tested 
and  approved.  In  most  instances  reference  is  made  in  the 
notes  to  the  cause  from  which  the  form  is  taken. 

The  forms  are  intended  merely  as  models  to  guide  the 
intelligent  attorney  in  preparing  pleadings  for  particular 
cases,  and  must  necessarily  be  adapted  to  the  varying 
conditions  of  such  cases  as  they  arise.  The  annotations 
following  the  forms  refer  to  authorities  which  will  aid  in 
the  preparation  of  such  pleadings. 

I  have  received  valuable  assistance  and  suggestions  in 
the  dilGferent  departments  of  practice  covered  by  this  vol- 
ume from  Mr.  Henry  Hooper,  Assistant  District  Attorney 
for  the  Southern  District  of  Ohio,  and  Hon.  Judson  Har- 
mon, of  Cincinnati.  I  wish  especially  to  acknowledge  the 
kindness,  encouragement,  and  assistance  extended  me  by 
General  B.  R.  Cowen,  Clerk  of  the  United  States  Courts 
at  Cincinnati,  and  Mr.  Robert  C.  Georgi,  Deputy  Clerk,  and 
Mr.  Boyd  E.  Dilley,  Deputy  Clerk  of  the  United  States  Cir- 
cuit Courts  of  Appeals  for  the  Sixth  Circuit. 

Frank  O.  Loveland. 

Cincinnati^  May^  1894. 


FORMS  OF  FEDERAL  PROCEDURE 


AT  LAW. 


No.  1. 

Caption. 


The  District  [or,  Circuit]  Court  of  the  United  States 
for  the District  of . 

A.  B.,   Plaintiff,    ^  At  Law. 

vs.  V  No. . 

C.  D.,  Defendant,  j  [Name  of  Action^ 

[Name  of  Pleading^ 


No.  2. 

Commencement  of  Declaration  (i)  by  an  Individual 
against  an  Individual. 

[Caption^ 

A.  B.,  of ,  state  of ,  who  is  a  citizen  of  the  said 

state  of ,  and  of  the  United  States,  plaintiff  in  this  suit, 

by  R.  X.,  his  attorney,  complains  of  C.  D.,  of ,  who  is  a 

citizen  of  said  state  of ,  and  an  inhabitant  (2)  of  the 

district  of aforesaid,  and  says: 

(i)  "Petition"  or  "Complaint"  according  to  the  practice  in  the 
state  where  the  action  is  commenced. 

(2)  See  Act  of  March  3,  1887,  as  amended  in  1888,  25  St.  at  L.,  p. 
433,  clause  4 ;  Desty's  Fed.  Proc,  Sec.  87. 

7 


8  AT    LAW. 

No.  3. 

Commencement   of  Declaration  (i)  by  a  Corporation 
against   a    Corporation. 

[^Caption.'] 

The  A.  B.  Co.,  a  corporation  organized  and  existing  under ' 
the  laws  of  the  state  of ,  and  a  citizen  of  said  state,  plain- 
tiff in  this  suit,  complains  of  The  C.  D.  Co.,  a  corporation 

organized  and  existing  under  the  laws  of  the  state  of , 

and  a  citizen  of  said  state,  and  an  inhabitant  (i)  of  the 

district  of aforesaid,  and  says : 

(i)  See  notes  to  No.  2. 


No.  4. 

Commencement  of  Declaration  (i)  by  a  Copartnership 

against  a  Copartnership. 
\Capiion.'\ 

A.  B.  and  F.  L.,  citizens  of  the  state  of ,  copartners, 

doing  business  under  the  firm  name  and  style  of  A.  B.  & 
Co.,  at ,  in  the  state  of ,  plaintiffs  in  this  suit,  com- 
plain of  C.  D.,  B.  R.,  and  A.  S.,  copartners,  doing  business 

under  the  firm  name  and  style  of  C.  D.  &  Co.,  at  ,  in 

the  state  of ,  all  of  whom  are  citizens  of  the  said  State 

of ,  and  inhabitants  (i)  of  the district  of afore- 
said, and  say : 

i)  See  notes  to  No.  2. 


No.  5. 

Commencement  of  Declaration  (i)  by  an  Alien  against 

a  Citizen  of  the  United  States. 
\^Caption.'\ 

A.  B.,  of ,  who  is  an  alien,  a  subject  of  the  emperor 

[or^  king,  or  queen,  or  citizen  of  the  republic]  of  ,  and 

plaintiff  in  this  suit,  complains  of  C.  D.,  of ,  who  is  a 

citizen  of  the  state  of ,  and  an  inhabitant  (i)  of  the 

district  of ,  and  says : 

(i)  See  notes  to  No.  2. 


DECLARATIONS,    ETC.  9 

No.  6. 

Commencement  of  Declaration  (i)  by  the  United  States. 

\Caption?[ 

The  United  States  of  America,  plaintiffs  in  this  suit,  by 

J.  H.,  their  attorney  in  and    for  the  district  of , 

complain  of  C.  D.,  of ,  a  citizen   of  the  state  of , 

and  an  inhabitant  (i)  of  the district  of aforesaid, 

and  say: 

(i)  See  notes  to  No.  2. 

No.  7. 

As  to  Pleadings  in  Suits  at  Law. 

In  suits  at  law  in  the  district  and  circuit  courts  of  the 
United  States  the  pleadings  conform  as  near  as  may  be  to 
the  pleadings  in  like  causes  in  the  courts  of  record  in  the 
states  within  which  such  federal  court  is  held,  except  in 
those  particulars  which  are  regulated  by  federal  statutes. 
It  would  be  impossible  in  this  book  to  give  the  forms  re- 
quired in  the  various  states  for  the  different  actions  at  law. 
The  pleader  is  therefore  referred  for  forms  of  pleading  in 
suits  at  law  in  the  federal  courts  to  the  forms  used  in  the 
state  courts  in  the  several  federal  districts. 

Section  914  of  the  Revised  Statutes  of  the  United  States 
provides  that  "  the  practice,  pleadings,  and  forms  and 
modes  of  proceeding  in  civil  causes,  other  than  equity  and 
admiralty  causes,  in  the  circuit  and  district  courts  shall 
conform,  as  near  as  may  be,  to  the  practice,  pleadings,  and 
forms  and  modes  of  proceeding  existing  at  the  time  in  like 
causes  in  the  courts  of  record  of  the  state  within  which  such 
circuit  or  district  courts  are  held,  any  rule  of  court  to  the 
contrary  notwithstanding."  See  Desty's  Fed.  Proc,  Sec. 
436,  and  cases  there  cited ;  and  Foster's  Fed.  Prac.  (2d  ed.). 
Sec.  360,  et  seq.\  R.  S.,  Sec.  914;  and  for  a  full  citation  of 
authorities  illustrating  the  above  consult  Gould  and  Tucker's 
notes  on  the  Revised  Statutes,  p.  285,  et  seq. 


lO  AT   LAW. 

ft 

No.  8. 

Application  for  Review  and  Reversal  of  Decisions  of  the 
Board  of  General  Appraisers  under  the  Customs  Law. 

Circuit  Court  of  the  United  States 
for  the District  of . 

In  re  AppUcation  of  the  A.  B.  Company. 

The  A.  B.  Co.,  a  corporation  organized  and  existing  un- 
der the  laws  of  the  state  of ,  applies  for  a  review  of 

the  following  decisions  of  the  board  of  general  appraisers 
as  to  the  construction  of  the  law  and  the  facts  respecting  the 
classification  of  merchandise  imported  by  your  petitioner  in 

bond  to ,  and  the  rate  of  duty  imposed  thereon  under 

such  classification ;  said  decisions  having  been  made  the 
day  of ,  1893. 

\Set  forth  the  entries  in  full^  as^  Entry  No.  61,  dated  Feb- 
ruary 4,  1893;  Steamer  Russia;  liquidated  February  6, 1893; 
Protest  No.  72;  Department  No.  12681  B.  The  amount  of 
the  erroneous  assessment  is  $9.90.] 

The  collector  assessed  duties  against  your  petitioner  upon 
the  actual  market  value  and  wholesale  price  of  all  of  said 
merchandise  as  bought  and  sold  in  usual  quantities  at  the 
time  of  its  exportation  to  the  United  States  in  the  principal 
markets  of  the  country  from  which  imported,  in  the  condition 
in  which  said  merchandise  is  there  bought  and  sold  for  expor- 
tation to  the  United  States,  or  consigned  to  the  United  States 
for  sale,  and  also  upon  the  value  of  all  crates,  cases,  cartons, 
boxes,  sacks,  and  coverings  of  every  kind,  and  upon  the  value 
of  all  other  costs,  charges,  and  expenses  incident  to  placing 
said  merchandise  in  condition,  packed  ready  for  shipment  to 
the  United  States. 

The  collector,  in  addition  to  said  assessment  on  the  value 
of  said  goods  as  aforesaid,  and  on  the  cost  of  packing  them 
for  shipment,  also  assessed  and  required  your  petitioner  to 
pay  duties  upon  the  cost  paid  by  your  petitioner  for  placing 
upon  and   about    said   merchandise    certain  tickets,  labels^ 


DECLARATIONS,    ETC.  II 

marks,  and  devices,  which  were  mere  trademarks  and  labels 
which  were  no  part  of  the  actual  market  value  or  whole- 
sale price  of  said  merchandise  as  bought  and  sold  in  usual 
quantities  at  the  time  of  exportation  to  the  United  States 
at  the  principal  markets  of  the  country  from  whence  im- 
ported in  the  condition  in  which  such  merchandise  is 
there  bought  and  sold  for  exportation  to  the  United  States, 
I  or  consigned  to  the  United  States  for  sale ;  which  were  no 
1  part  of  the  crates,  cases,  cartons,  boxes,  sacks,  or  coverings 
of  any  kind,  or  of  any  other  costs,  charges,  or  expenses  inci- 
dent to  placing  the  merchandise  in  condition  packed  ready 
for  shipment  to  the  United  States  ;  which  were  not  merchan- 
dise, which  were  of  no  intrinsic  commercial  value,  and  which 
were  not  dutiable  under  Section  19  of  the  Act  approved 
June  10,  1890,  entitled  "An  Act  to  Simplify  the  Laws  in  Re- 
lation to  the  Collection  of  the  Revenues  ";  nor  otherwise 
dutiable. 

The  collector  erred  in  making  said  assessment,  and  the 
General  Appraisers  erred  in  sustaining  them,  to  the  amounts 
indicated  in  this  petition  with  respect  to  each  of  said  entries. 
Wherefore  your  petitioner  prays  that  said  decisions  of  the 
Board  of  General  Appraisers  may  be  reviewed  and  reversed ; 
that  your  petitioner  may  recover  said  several  sums  illegally 
assessed  against  it,  as  .  hereinbefore  stated,  and  its  costs,  and 
that  it  may  have  all  other  relief  to  which  it  may  be  entitled. 

X.  &  X., 
Attorneys  for  The  A.  B.  Co. 


No.  9. 

Declaration  for  Infringement  of  a  Patent. 
See  under  title  "  Patents." 


12  AT   LAW. 

No.  10. 

Declaration  for  Infringement  of  a  Copyright  or  Trademark. 

Consult  form  of  Declaration  for  Infringement  of  a  Patent 
under  title  "Patents,"  and  Bill  in  Equity  under  title  "  Copy- 
rights and  Trademarks." 


No.  11. 

Appearance. 

[^Caption.'] 

To  the  Clerk  of  said  Court : 

•  Please  enter  my  appearance  as  attorney  for  the  defendant 
in  the  above  entitled  cause.  R.  Y., 

Dated .  Attorney  for  Defendant. 


No.  12. 

Appearance  for  Special  Pleading. 

[^Captwn.'\ 

Now  comes  the  defendant  by  his  counsel  and  enters  his 
appearance  herein  for  the  purpose  of  pleading  to  the  juris- 
diction of  this  court  [or  as  may  be\  and  for  no  other  purpose. 

Y.  &  Y., 

Dated .  Attorneys  for  Defendant. 


No.  13. 

Appearance  by  Defendant  in  Person  (i). 

I  promise  to  appear  at  the  return  of  the  within  writ,  and 
pray  the  court  to  enter  my  appearance  accordingly. 

C.  D., 
Dated .  ,  Defendant. 

(i)  This  appearance  is  usually  indorsed  on  the  writ. 


DECI^ARATIONS,    ETC.  I^ 

No.  14. 

Notice  to  Plead. 
[Caption.'] 
Y.  &  Y., 

Attorneys  for  Defendant. 
Please  take  notice  that  a  rule  has  been  entered  in  this 
cause  with  the  clerk  of  this  court,  at  his  office  in  the  city  of 
,  requiring  the  defendant  to  plead  to  the  petition  \or^  de- 
claration, etc.]  filed  in  this  cause  within  twenty  days  after 
service  of  a  copy  thereof,  with  which  you  are  hereby  served^ 
and  notice  of  rule  or  judgment. 

X.  &  X., 

Dated  at  .  Attorneys  for  Plaintiff. 

Service  accepted  this day  of ,  1894. 

Y.  &  Y., 

Attorneys  for  Defendant. 


No.  15. 

Notice  to  Declare. 

[Caption.'] 

X.  &  X., 

Attorneys  for  Plaintiff. 

Please  take  notice  that  the  plaintiflf  in  this  cause  is  hereby 

required  to  declare  within days  after  the  service  of  this 

notice,  or  that  judgment  of  discontinuance  will  be  entered 
against  him.  Y.  &  Y., 

Dated .  Attorneys  for  Defendant. 

Service  accepted,  etc.  [as  in  No.  14]. 


No.  16. 

Notice  of  Motion  for  Leave  to  Amend. 

[Caption.] 
Y.  &  Y., 

Attorneys  for  Defendant  [or^  Plaintiff^. 
Please  take  notice  that  we  shall  make  a  motion  before  the 
judge  of  the  district  [<?r,  circuit]  court  of  the  United  States  for 


J4  AT  LAW. 

the district  of ,  on  the  day  of ,  1894,  at 

ten  o'clock  in  the  forenoon,  or  as  soon  thereafter  as  counsel 
can  be  heard,  that  the  plaintiff  [or,  defendant]  in  this  cause 
have  leave  to  amend  the  declaration  [or,  answer,  or,  etc.]  filed 
herein,  on  such  terms  as  the  said  court  may  direct ;  a  copy 
of  which  amendment  and  affidavits  in  support  thereof,  which 
will  be  presented  to  the  court  at  such  hearing,  are  herewith 
served  upon  you.  X.  &  X., 

Attorneys  for  Plaintiff  [or.  Defendant]. 

Dated  . 

Service  accepted,  etc.  [as  in  No.  14]. 


No.  17. 

Demand  of  Oyer. 

[Caption^ 
Y.  &  Y., 

Attorneys  for  Defendant  [or,  Plaintiff.] 

The  plaintiff  [or,  defendant]  demands  oyer  and  copy  of  con- 
tract mentioned  in  defendant's  answer  in  this  cause  [or  specify 
the  document  desired,  and  the  pleading  in  which  it  is  men- 
tioned]. X.  &  X., 

Attorneys  for  Plaintiff  [or,  Defendant]. 

Dated . 

Service  accepted,  etc.  [as  in  No.  14]. 


No.  18. 

Notice  to  Reply. 
[Caption^ 

X.  &  X., 

Attorneys  for  Plaintiff. 
Please  take  notice  that  the  plaintiff  in  this  cause  is  hereby 
required  to  reply  to  the  plea  [or,  pleas]  filed  herein,  with  a 
copy  of  which  you  are  hereby  served,  within days  after 


DECLARATIONS,    ETC.  1 5 

service  of  a  copy  thereof,  and  of  this  notice,  or  judgment  will 
be  entered  against  him.  X.  &  X., 

Attorneys  for  Defendant 

Dated . 

Service  accepted,  etc.  [as  in  No.  14]. 


No.  19. 

Notice  of  Trial. 
\Caption.'\ 

Y.  &  Y., 

Attorneys  for  Defendant  \or^  Plaintiff]. 

Please  take  notice  that  the  above  cause  will  be  brought  to 
trial  at  the  next  term  of  the  district  \or^  circuit]  court  of 

the  United  States  for  the district  of ,  to  be  held  at 

the  United  States  court-rooms  in  the  city  of ,  before  the 

judge  of  the  said  court  on  the day  of ,  at  ten  o'clock 

in  the  forenoon  of  that  day.  X.  &  X., 

Attorneys  for  Plaintiff  [<?r.  Defendant]. 

Dated . 

Service  accepted,  etc.  \as  in  No.  14]. 


No.  20. 

Subpoena  of  Witness   to  Testify  before  a  Commissioner. 

See  form  under  title  "Criminal  Proceedings." 


No.  21. 

Habeas  Corpus  ad  Testificandum. 

For   form  of  Affidavit  and  Writ  see    forms  under  title 
"  Criminal  Proceedings." 


l6  AT    LAW. 

No.  22. 

Notice  for  Examination  of  Witness  de  bene  esse. 

[^Caption  J\ 
Y.  &  Y., 

Attorneys  for  Defendant  \or^  Plaintiflf]. 

Please  take  notice  that  the  deposition  de  bene  esse  of  G.  H.^ 

(i)  of ,  who  resides  more  than  one  hundred  miles  from 

,  where  the  court  at  which  the  above  entitled  cause  will 

be  tried,  is  to  be  held  \or  state^  according  to  the  fcict^  the  rea- 
son for  taking  the  deposition^  as^  is  bound  on  a  voyage  to  sea, 
etc.],  will  be  taken  to  be  read  in  evidence  at  the  trial  of  the 
said  cause  on  the  part  of  the  plaintiff  \or^  defendant]  herein, 
before  J.  N.,  United  States  commissioner  [or,  notary  public^ 

etc^^  at  his  office,  number  , street,  in  the  city  of 

,  on  the day  of ,  beginning  at  ten  o'clock  in 

the  forenoon  of  that  day,  and  continuing  from  day  to  day 
until  completed. 

You  are  requested  to  be  present  and  cross-examine,  if  you 
desire  to  do  so.  X.  &  X., 

Attorneys  for  Plaintiff  \or^  Defendant]. 

Dated . 

Service  accepted,  etc.  \as  in  No.  14]. 
(i)  The  names  of  all  the  witnesses  to  be  examined  should  be  given. 


No.  23. 

Subpoena  of  Witness  de  bene  esse. 

\Caption^ 
To  G.  H. 

Please  take  notice  that  you  are  required  to  appear  before 

me  at  my  office,  number ,  street,  in  the  city  of , 

on  the day  of ,  at  ten  o'clock  in  the  forenoon  of 

that  day,  and  there  to  be  examined  de  bene  esse  on  the  part 

of  the in  the  above  entitled  cause.     You  are  required  to 

be  present  to  testify  at  the  time  and  place  above  mentioned. 

Witness  my  hand  and  official  seal  at ,  this day  of 

.  J.  N., 

\^Seai:\  [Official  title.} 


DECI^ARATIONS,    ETC.  1 7 

No.  24. 

Caption  for  Depositions  de  bene  esse. 

The  United  States  of  America, 

District  of , 

State  of ,  County  of ,  ss. 

The  examination  of  witnesses  de  bene  esse  beginning  on  the 
day  of ,  on  behalf  of  the ,  before  me,  J.  N.,  {offi- 
cial iztle)^  at  my  office  at  number ,  street,  in  the 

city  of ,  in  the  said  district  of ,in  the  state  aforesaid, 

in  a  certain  suit  now  depending  and  undetermined  in  the 

district  [or,  circuit]  court  of  the  United  States  for  the 

district  of [siate  place  the  court  is  held  ],  in  the  district 

aforesaid,  wherein  A.  B.  is  plaintiff,  and  C.  D.  is  defendant. 

G.  H.,  a  witness  produced  on  behalf  of  the  plaintiff  \or,  de- 
fendant], being  first  duly  sworn,  deposes  and  says  as  follows: 

My  name  is  G.  H.,  age ,  and  I  reside  at  and  am  em- 
ployed, etc.  [Continue  with  the  deposition^  which  the  imtness 
must  sign.'] 

No.  25. 

Certificate  at  Close  of  Depositions. 

State  of , 

County  of ,  ss. 

I,  J.  N.,  a  notary  public  in  and  for  said  county  and  state 
[or,  United  States  commissioner,  or  as  may  be\  duly  commis- 
sioned and  qualified,  and  authorized  to  administer  oaths,  and 
to  take  and  certify  depositions,  do  hereby  certify  that,  pursu- 
ant to  the  annexed  notice  issued  and  served  in  the  civil  cause 
depending  in  the  circuit  court  of  the  United  States  for  the 
district  of ,  wherein  A.  B.  is  plaintiff,  and  C.  D.  de- 
fendant, I  was  attended  at  my  office.  No. , street, 

in ,  by  R.  X.,  counsel  for  said  plaintiff,  as  also'by  R.  Y., 

counsel  for  defendant,  on  the  several  days  and  dates  herein- 
before stated ;  that  the  aforenamed  witnesses,  E.  F.,  G.  H., 


1 8  AT    LAW. 

and  J.  S.,  who  were  of  sound  mind  and  lawfui  age,  and  were 
by  me  first  carefully  examined  and  cautioned  and  duly  sworn 
to  testify  the  truth,  the  whole  truth,  and  nothing  but  the 
truth  ;  and  they  thereupon  testified  as  is  above  shown,  and 
that  the  depositions  by  them  subscribed,  as  above  set  forth, 
were  reduced  to  writing  in  the  presence  of  the  witnesses  them- 
selves, and  from  the  statements  of  them,  and  were  subscribed 
by  the  said  witnesses  in  my  presence,  and  were  taken  at  the 
place  in  the  annexed  notice  specified  and  at  the  times  as  set 
forth,  adjournments  being  had  or  taken  from  day  to  day  as 
provided  for  in  said  notice,  and  that  all  was  so  done,  written 
and  signed  in  the  presence  of  said  counsel  for  said  plaintiff 
and  defendant.  I  further  certify  that  the  reason  for  taking 
said  depositions  was,  and  is,  and  the  fact  was,  and  is,  that  all 

of  the  deponents  live  at ,  more  than  one  hundred  miles 

from  the  place  where  the  said  civil  issue  is  appointed  by 
law  to  be  tried  ;  that  I  am  neither  of  counsel  nor  attorney  to 
either  of  the  parties  to  said  suit,  nor  interested  in  the  event 
of  said  cause,  and  that  it  being  impracticable  for  me  to  deliver 
said  depositions  and  the  exhibits  thereto  attached  with  my 
own  hand  into  the  court  for  which  they  were  taken,  I  have 
retained  the  same  for  the  purpose  of  being  sealed  up  and 
directed  with  my  own  hand,  and  speedily  and  safely  trans- 
mitted to  the  said  court  for  which  it  was  taken,  and  to  remain 
under  my  seal  until  there  opened. 

As  witness  my  hand  and  seal  as  such  examiner  [or  as  may 

be\  at ,  on  this day  of ,  1894. 

J.N., 

[5^fl!/.]  [Official  title i] 

No.  26. 

Transmission  of  Depositions. 

The  depositions  should  be  sealed  and  transmitted  by  the 
officer  taking  them  to  the  clerk  of  the  court  in  which  the  suit 
is  pending.     The  following  form  may  be  used  to  indorse  the 


DECLARATIONS,    ETC. 


19 


enclosure  within  which  the  depositions  are  transmitted  to 
the  clerk. 


n3 

a 

o 
^  o 

o 
O 


id 


<u  ,0         -M 
C/3  <3 


s        O 


1»  c  > 


O    tn 


> 


<-:  <u  (u  ? 


o  "^ 

X  d)    <i) 

V  d)  B 

Ei  <L(   2 


To  the  Clerk  of  the  Dis- 
trict [or,  Circuit]  Court, 
Cincinnati, 

Ohio. 


No.  27. 

Notice  of  Taxation  of  Costs. 

[Cap^'onJ] 

Y.  &  Y., 

Attorneys  for  Defendant  [or,  Plaintiff]. 
Please  take  notice  that  the  bill  of  costs  in  the  above  enti- 
tled cause  will  be  taxed  before  the  clerk  of  said  court  at  his 

office  at ,  in  the  city  of ,  on  the day  of ,  at 

ten  o'clock  in  the  forenoon  of  that  day  as  follows,  to  wit: 

Marshal's  fees, $ . 

Clerk's  fees, $ .    ' 

Commissioner's  fees,     ....  $ . 

Attorney's  Fees, $ . 

X.  &  X., 


Dated 


Attorneys  for  Plaintiff  [or,  Defendant]. 


Service  accepted,  etc.  [as  in  No.  14]. 


20  AT   I,AW. 

No.  28. 

Cost  Bill. 

A.  B,,  Plaintiff,      ~|  District  [or,  circuit]  court  of  the  United 

vs.  >       States  for  the district  of . 

C.  D.,  Defendant.  J  No. . 


CLERK'S  FEES  (i). 

@ 

■15 

1. 00 
•  15 
•25 

PLAINTIFF. 

defend't. 

Entering  appearance  of parties,  . 

Drawing,  filing  and  ack.  cost  bond,  .    . 
Issuing process  (except  for  witness), 

Indorsing  cause  of  action  on writs, 

Issuing subpoenas  for  witnesses,  . 

Entering  marshal's  return  on writs; 

folios, 

Filing" papers 

.10 

Indorsing  certificate  of  opening  

depositions, 

•  IS 

Copying  folios, 

Certificate  and  seal  to copies,    .    . 

Taking affidavits, 

.10 

•35 
.10 

•  ' 

Certificate  and  seal  thereto 

Indorsing  papers ;  folios,    .... 

Entering folios  on  journal,    .    .    . 

Drawing bonds  ;  folios,  .    .    . 

Taking ack's  under  seal 

Swearing sureties  to  bond,   .    .    . 

Certificate  and  seal  thereto,  •    •    •    .    . 

Swearing  witnesses to  testify,  .    . 

Swearing  witnesses   to  att.   and 

travel, 

•35 
•15 
•15 
•15 
•45 
.10 

•35 
.10 

.10 

Entering folios  claims  of  witnesses, 

•15 
.10 

•15 

Issuing certificates  of  attendance,  . 

Entering folios  complete  record,  . 

Making   dockets,   indexes,   etc.,   $i.oo, 
$2.00,  $3.00, 

:: 

Commission  on  amount  received,  $  .    . 
Making  copy  of  cost  bill ;  folios,  . 

.10 

;  ;  ; 

GENERAL  STATEMENT. 
Clerk, 

Marshal, 

Docket  fee, 

Attorney's  fees  on  depositions,  .... 

Plaintiff's  notary's  fees  on  depositions. 
Defendant's    notary's    fees   on   deposi- 
tions,   

Defendant's  witnesses'  fees, 

Plaintiff's  witnesses'  fees, 

Total 

(I)  SeeR.  S.  Sec.  828. 


MISCELLANEOUS   WRITS,    ETC.  31 


MISCELLANEOUS   WRITS,  ETC.,  IN    SUITS  AT 
LAW    AND    IN    EQUITY. 


No.  29. 
Summons  at  Law. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the District  of ,  Greeting  : 

You  are  hereby  commanded  to  summon  C.  D.,  citizen  of 

and  resident  in  the  state  of ,  if  he  be  found  in  your 

district,  to  be  and  appear  in  the  district  [or,  circuit]  court  of 

the  United  States  for  the district  of aforesaid,  at 

,  on  the  Tuesday  in  the  month  of ,  1894,  to 

answer  unto  A.  B.,  citizen  of  and  resident  in  the  state  of , 


in  civil  action  for  [as  may  be] .     And  have  you  then  and 

there  this  writ. 

[Add  teste  according  to  the  court  issuing  the  writ.    See  Nos. 
30  and  31.] 


No.  30. 

Teste  for  Writs  Issuing  from  a  District  Court    (i). 

Witness  the   Honorable  G.   N.,  Judge  of  the  district 

court  of  the  United  States,  this day  of , 

[Seal^  1894,  and  in  the  11 8th  year  of  the  Independence 

of  the  United  States  of  America. 

Attest :     B.  R., 

Clerk. 

(i)  See  R.  S.,  Sec.  911 ;  Desty's  Fed.  Proc,  Sec.  433,  and  cases  there 
cited;  Foster's  Fed.  Prac,  Sees.  361  and  484,  and  cases  cited  in  notes  ; 
also  Gould  and  Tucker's  Notes  on  the  Revised  Statutes,  pages  283 
and  287. 


22  AT   LAW. 

No.  31. 

Teste  for  Writs  Issuing  from  the  Supreme    Court,  a  Cir- 
cuit Court  of  Appeals,  or  a  Circuit  Court  (i). 

Witness   the   Honorable    Melville   W.    Fuller,   Chief 

Justice  of  the  United  States,  this  day  of 

[Seal."]  ,  1894,  and   in    the    ii8th    year   of  the  In- 

dependence of  the  United  States  of  America. 

Attest :     B.  R., 


(i)  See  note  to  No.  30. 


Clerk. 


No.  32. 

Return  of  Writ  by  Marshal  (i). 

Received  this  writ  on  the day  of ,  1894,  and  on 

the day  of 1894,  I  served  the  same  by  handing  a 

true  copy  thereof,  with  the  indorsement  thereon,  to  said 
C.  D.  personally  [or  say,  I  left  a  like  copy  thereof,  with  the 
indorsement  thereon,  with  an  adult  person,  who  is  a  member 
[or,  resident]  in  the  family  of  C.  D.,  at  the  usual  place  of 
residence  of  said  C.  D.].  H.  C, 

United  States  Marshal  for  the 
FEES.  district  of . 

Copy,       

Mileage, 

Service,   


(i)    See  i3tli  Rule  in  Equity. 


No.  33. 

Subpoena  in  Chancery. 

The  United  States  of  America, 

District  of ,  ss. 

The    President   of  the   United   States   of  America   to   the 

Marshal  of  the district  of ,  Greeting : 

You  are  hereby  commanded  to  summon  C.  D.,  citizen  of 
and  resident  in  the  state  of ,  if  he  be  found  in  your  dis- 


MISCELLANEOUS   WRITS,    ETC.  23 

trict,  to  be  and  appear  in  the  circuit  court  of  the  United 

States  for  the district  of aforesaid,  at ,  on  the 

first  Monday  in next,  to  answer  a  certain  bill  in  chan- 
cery, filed  and  exhibited  in  said  court,  against  C.  D.,  by  A.  B., 

citizen  of  and  resident  in  the  state  of .     Hereof  you  are 

not  to  fail,  under  the  penalty  of  the  law  thence  ensuing. 
And  have  you  then  and  there  this  writ. 
[Add teste.    See  No.  2,'i-^ 

MEMORANDUM  (l). 

The  said  defendant  is  required  to  enter  his  appearance  in 
this  suit  in  the  clerk's  office  of  said  court  on  or  before  the 

first  Monday  of ,  1894,  otherwise  the  said  bill  may  be 

taken  pro  confesso.  B.  R., 


Clerk. 


(i)  See  12th  Rule  in  Equity. 


No.  34. 

Capias  ad  Respondendum. 

See  form  under  title  "Criminal  Proceedings." 


No.  35. 

Recognizance  for  Appearance. 

See  form  under  title  "  Criminal  Proceedings." 


No.  36. 
Cost  Bond. 

District  [^r.  Circuit]  Court  of  the  United  States,  for  the 
District  of ,  ss. 


A.  B.,  Plaintiff,     ^  No. . 

vs.  \  Cost  Bond. 

C.  D.,  Defendant.  J 

I    hereby  acknowledge  myself  security  for  costs    in   the 
above  entitled  cause. 

E.  F.  [Seal?^ 


24  AT    LAW. 

Taken  and  acknowledged  before  me  this day  of , 

1894.  B.  R., 

[Seal.']  Clerk  of  District  [or,  Circuit]  Court  of  the 

United  States, district  of . 

I,  E.  F.,  a  resident  of  said  district,  do  solemnly  swear, 
that  after  paying  my  just  debts  and  liabilities  I   am  worth 

dollars,  in  real  estate   within  the  jurisdiction  of  this 

court,  and  subject  to  execution,  levy  and  sale. 

E.  F. 

Sworn  to  and  subscribed  before  me  this day  of 

1894.                                                                               B.  R., 
[►S(?«/.]        Clerk  of  the  District  [<?r,  Circuit]  Court  of  the 
United  States  for  the district  of . 


No.  37. 

Notice  to  Surety. 

The  United  States  of  America, 

District  of ,  ss. 

A.  B.,  Plaintiff,   ^  In  the  District  [or,  Circuit]  Court  of  the 
vs.  y  United  States 

CD.,  Defendant,  j  for  the district  of . 

To  E.  F.,  security  for  costs  in  the  above  entitled  cause : 

This  is  to  give  you  notice,  that  on ,  the day  of 

1894,  at  10  o'clock  in  the  morning,  or  as  soon  there- 
after as  counsel  can  be  heard,  the  said  circuit  court  will  be 
moved  to  enter  up  judgment  in  the  name  of  said  defendant, 
C.  D.,  against  you  as  security  for  costs  in  the  above  entitled 

cause  for dollars  and cents,  the  amount  of  costs 

adjudged   against   the  said  C.  D.  at  the  term  of  said 

court,  1894,  and  still  remaining  due  and  unpaid;  also  for 
the  interest  thereon,  and  the  costs  of  increase  that  may  be 
found  due,  including  the  costs  of  this  proceeding. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 

[Seal.']         affixed  the  seal  of  said  court  at  this  

day  of ,  1894.  B.  R., 

Clerk. 


MISCELLANEOUS   WRITS,    ETC.  25 

No.  38. 

Dedimus  Potestatem  (i). 

The  United  States  of  America, 

District  of ,  ss. 

The    President  of  the  United  States  of  America  to  J.  N., 
Greeting : 

Know  ye,  that  we,  in  confidence  of  your  prudence  and 
fidelity,  have  appointed  you  commissioner,  and  by  these 
presents  do  give  you  [oTy  any  two  or  more  of  you]  full  power 
and  authority  diligently  to  examine  upon  his  [or,  their 
respective]  corporal  oath  [or,  affirmation]  before  you  to  be 
taken,  G.  H.  as  witness  on  the  part  of  plaintiff  [or,  defend- 
ant] in  a  certain  cause  now  pending  undetermined  in  the 

circuit  court  of  the  United  States  of  America  for  the 

district  of in  the  circuit,  wherein  A.  B.  is  plain- 
tiff, and  C.  D.  is  defendant,  touching  the  premises  [<?r,  z/ 
interrogatories  are  annexed,  on  the  interrogatories  hereunto 
annexed]. 

And  we  do  further  empower  you  [or,  any  two  or  more  of 
you]  to  examine  on  the  same  behalf,  and  in  like  manner,  any 
other  person  or  persons  who  may  be  produced  as  witnesses 
before  you. 

And  we  do  hereby  require  you  [and  any  two  or  more  of 
you]  before  whom  such  testimony  may  be  taken,  to  reduce 
the  same  to  writing,  and  to  close  it  up  under  your  hand  and 
seal,  directed   to   B.  R.,  clerk   of  the  circuit  court   of  the 

United  States, district  of ,  city  of ;   and  that 

you  return  the  same  when  executed  as  above  directed,  an- 
nexed to  this  writ,  with  the  title  of  the  cause  indorsed  on 
the  envelope  of  the  commission,  into  the  said  circuit  court, 
before  the  judge  [or,  judges]  thereof,  with  all  convenient 
speed. 

[Add  teste.     See  No.  31.] 

(i)  See  R.  S.,  Sec.  866 ;  Desty's  Fed.  Proc.,  Sec.  385. 


26  AT   LAW. 

No.  39. 

Siibpcsna  for  W^itness. 

The  United  States  of  America, 
District  cf ,  ss. 


The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the District  of ,  Greeting : 

We  command  you  to  summon  G.  H.,  of ,  county  of 

,  district  and  state  aforesaid,  if   he    be  found    in  your 

bailiwick,  to  be  and  appear  before  [name  of  court  or  exam- 
iner^ or  as  many  as  may  be\^  at ,  on  the day  of , 

1894,  at  10  o'clock  a.  m.,  to  give  evidence  on  behalf  of  the 
plaintiff  \or^  defendant]  in  a  suit  pending  in  the  district  [^r, 

circuit]  court  of  the  United  States  for  the district  of 

,  wherein  A.  B.  is  plaintiff,  and  C.  D.  is  defendant. 

Hereof  fail  not ;  and  of  this  writ  make  legal  service  and 
due  return. 

\Add  teste  according  to  the  court  issuing  the  writ.  See  Nos. 
30  and  31.]  

No.  40. 

Subpoena  Duces  Tecum. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  E.  F. 
and  G.  H.,  Greeting : 
We  command  and  strictly  enjoin  you  and  each  of  you,  that, 
laying  aside  all  manner  of  business  and  excuses  whatsoever, 
you  and  each  of  you  be  and  appear  in  your  proper  person 
before  our  district  [<?r,  circuit]  court,  [or  such  officer  as  may 

be  named  here']  on  the day  of next,  at  10  o'clock 

a.  m.,  and  also  that  you  bring  with  you  and  produce  at  the 
time  and  place  aforesaid  \jiatne  papers  or  books  or  what- 
ever is  to  be  produced  by  witness]  then  and  there  to  testify, 
what  you  and  each  of  you  may  know,  in  a  certain  action, 
pending  in  said  court,  wherein  A.  B.  is  plaintiff,  and  C.  D.  is 


MISCELLANEOUS   WRITS,    ETC.  2/ 

defendant,  [or,  before  J.  N.,  U.  S.  Commissioner,  etc.,  or  as 
may  be^  and  this  you  do  under  the  penalty  of  the  law. 

\Add  teste  according  to  the  court  issuing  the    writ.      See 
Nos.  30  and  31.] 


No.  41. 

Writ  of  Attachment   against  Witness  for  Disobeying 
Subpoena  (i). 

The  President  of  the  United  States  of  America  to  the  Marshal 
of  the district  of . 

You  are  hereby  commanded  to  attach  G.  H.,  if  he  may  be 

found  in  your  district,  and  bring  him  on  the day  of 

\ory  forthwith]  personally  before  the  judge  of  the  district  \or, 

circuit]  court  of  the  United  States  for  the district  of y 

held  at  the  United  States  court-rooms  in  the  city  of ,  in 

the  said  district,  to  answer  for  certain  trespasses  and  con- 
tempts in  not  obeying  our  writ  of  subpoena  directed  to  him 
and  duly  served  on  him,  commanding  him  to  appear  before 

the  said  district  \or,  circuit]  court  at ,  on ,  to  testify 

all  and  singular  those  things  which  he  knows  in  a  certain 
cause  depending  in  the  said  court  between  A.  B.,  plaintiff, 
and  C.  D.,  defendant ;  and  you  are  further  commanded  to  de- 
tain him  in  your  custody  until  he  shall  be  discharged  by  the 
said  court,  and  have  you  then  and  there  this  writ. 

\Add  teste  according  to  the  court  issuing  the  writ.  See  Nos^ 
30  and  31.] 

(i)  For  form  of  Rule  to  Show  Cause  why  a  Writ  of  Attachment 
should  not  Issue,  consult  No.  49. 


28  AT   LAW. 

Wo.  42. 

Order  for  the  Delivery  of  Personal  Property. 

The  United  States  of  America, 

District  of ,  ss. 

Circuit  Court  of  the  United  States. 
A.  B.,  Plaintiff,       ^ 

vs.  >  At  Law.  No. . 

CD.,  Defendant.    J 

The  President  of  the  United  States  of  America  to  the  Marshal 

of  the district  of ,  Greeting: 

You  are  commanded  to  take  [here  describe  the  property 
to  be  taken]  from  the  possession  of  the  defendant,  C.  D.,  and 
deliver  the  same  to  the  plaintiff,  A.  B.,  upon  A.  B.  giving  the 
undertaking  required  by  law. 

You  will  make  due   return  of  this  order  on  or  before  the 

Tuesday  of ,  1894. 

\Add  teste  according  to  the  court  issuing  the  writ.  See  Nos. 
30  and  31.] 


No.  43. 

Return  of  Marshal  on  above  Order  for  the  Delivery  of 
Personal  Property. 

,  1894.     I  have  this  day  executed  the  foregoing  order 

of  delivery,  by  taking  the  property  therein  mentioned  ;  ascer- 
taining by  the  oaths  of  E.  F.  and  G.  H.,  two  responsible  per- 
sons, the  value  thereof,  which  is dollars  ;  delivering  the 

same  to  plaintiff,  A.  B.  having  executed  to  the  defendant  a 

written  undertaking  in  the  sum  of  $ ,  with  S.  L.  and  A, 

marshal's  fees.  I^.  as  sureties  ;  and  by  serving  a 

Se^ce  '.   .   .    .   .   .   .   .   .  copy  of  this  order  on  C.  D.,  said 

Mileage defendant. 

I^Jveitor^^.''*^  '.'.'.'.   '.   '.  \.^^^  schedule  and  undertaking 

Writing  ap.  report      .    .    .  hereto  attached^ 
Sum.  and  swear,  ap  .    .    .  H    C 

Removing  property    ...  •      •» 

Caring  for  property    .   .    .  United  States  Marshal  for  the 

Appraisers'  fees district  of . 


MISCELLANEOUS   WRITS,    ETC.  29 

No.  44. 
Order  for  Sale. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Marshal 
of  the District  of . 

You  are  hereby  commanded,  in  pursuance  of  an  order  of 
the  district  {or,  circuit]  court  of  the  United  States,  for  the 
district  of aforesaid,  made  at  the term  there- 
of, 1894,  in  the  case  of  A.  B.  against  C.  D.,  to  proceed  with- 
out delay,  and  cause  to  be  appraised,  advertised,  and  to  sell 
according  to  law  {here  describe  the  property] ,  and  that  your 
proceedings  in  the  premises  you  make  known  to  our  said 
district  [or,  circuit]  court  of  the  United  States,  within  and 

for   the  district  of ,  according  to  law,  and   have 

you  then  and  there  this  writ. 

[Add  teste  according  to  court  issuing  writ.  See  Nos.  30 
and  31.] 


No.  45. 

Marshal's  Appraisement  of  Real  Estate. 

The  United  States  of  America,  ^  In  the  district  [or,  circuit] 
for  the  V  court. 

District  of ,  ss.       j  No. . 

A.  B.,  plaintiff,  against  C.  D.,  defendant. 

An  appraisement  taken  at  the  city  of ,  in  the  county 

of ,  and  state  of ,  and  within  the  district  aforesaid, 

on ,  the day  of ,  1894,  before  H.  C,  marshal 

of  the  United  States  for  the district  of ,  in  obedi- 
ence to  the  command  of  a  certain  order  of  sale  [or  as  may  be] 
in  the  above  entitled  cause  issued  from  the  district  [or,  cir- 
cuit] court  of   the   United    States   for  said district  of 

,  and  to  him  directed,  dated  at  the  city  of ,  state 

of ,  on  the day  of ,  1894. 


30  AT   LAW, 

Pursuant  to  said  order  of  sale,  the  said  H.  C,  marshal  of 

the  United  States  for  the district  of aforesaid,  did, 

on  the day  of ,  1894,  in  compliance  therewith,  and 

according  to  the  statute  in  such  case  made  and  provided, 
summon  an  inquest  of  three  judicious,  disinterested  free- 
holders, resident  in  said  district,  to  wit:  E.  F,,  G.  H.,  and  I. 
J.,  who  are  duly  sworn  and  charged  to  appraise  at  its  true 
value  in  money  the  lands  and  tenements  of  the  said  C.  D., 
defendant,  described  in  the  words  and  figures  following,  to 
wit :  [Here  describe  the  property^ 

Whereupon  the  said  appraisers,  each  of  whom  doth  for 
himself  hereby  certify  that  he  is  a  resident  freeholder  in 
said  district,  say,  upon  their  oaths,  that  the  premises  herein- 
before described,  upon  actual  view  thereof,  are  of  the  value  of : 

First  tract, dollars. 

Second  tract, dollars. 

Third  tract, dollars. 

As  a  whole, dollars. 

In  testimony  whereof,  as  well  I,  H.  C,  marshal  of  the 

United  States  for  the district  of ,  as  the  inquest 

aforesaid,  have  to  this  appraisement  set  our  hands  and  seals 
on  the  day  and  year  first  above  written. 

H.  C,  U.  S.  Marshal district  of .         \Seai:\ 

E.  F.      \seal\ 
G.  H.     \seal\ 
I.  J.        \seai:\ 
The  United  States  of  America, 

District  of ,  ss. 

I  do  hereby  certify  that  the  above  named  appraisers  were 
freeholders  and  residents  of  said  district,  and  that  they  were 
duly  summoned  and  sworn  by  me,  according  to  law,  on  the 
day  and  year  first  above  written.  H.  C, 

United  States  Marshal  for  the 
district  of . 


MISCELLANEOUS   WRITS,    ETC.  31 

No.  46. 

Marshal's  Report  of  Sale  of  Real  Estate. 

The  United  States  of  America, 
District  of -. 

Received  this  writ  the day  of ,  1894,  and,  pur- 
suant to  its  command,  the  undersigned  did,  on  the day 

of ,  1894,  on  the  premises,  near  the  town  of ,  county 

of ,  state  of ,  and  within  the  district  aforesaid,  by 

the  oaths  of  E.  F.,  G.  H.,  and  I.  J.,  three  judicious,  disinter- 
ested freeholders,  resident  in  said  district,  cause  to  be  ap- 
praised at  their  true  value  in  money  the  lands  and  tenements 
described  in  said  order,  to  wit:  [Here  set  forth  a  full  descrip- 
tion of  lands  and  te7tements.'\ 

The  report  of  said  appraisers  is  hereto  attached,  marked 
"A,"  and  made  part  hereof.  A  copy  of  said  appraisement 
was,  by  the  undersigned,  immediately  deposited  with  the 
clerk  of  the  district  [or,  circuit]  court  of  the  United  States 
for  the district  of ,  to  be  by  him  filed  in  said  cause. 

Also,  notice  of  the  sale  of  said  premises  was  by  the  under- 
signed given  in   the  [give  name  of  paper\  a  weekly 

newspaper,  published  and  of  general  circulation  in  the  county 

of ,  state  of ,  where  said  lands  are  situate,  for  more 

than  thirty  days  prior  to  the  day  of  sale,  and  appeared  in 
said  paper  weekly  on  [set  forth  the  days\  as  will  more  fully 
appear  by  reference  to  the  proof  of  publication  herewith 
filed,  marked  "B." 

Afterwards,  to  wit:  on  the day  of ,  1894,  at  the 

court-house,  in  the  town  of ,  county  of ,  and  state 

of ,  at  the  hour  of  one  o'clock,  solar  time,  the  time  and 

place  named  in  said  advertisement  of  sale,  said  lands  and 
tenements  were  by  the  undersigned  offered  for  sale  at  public 
outcry,  in  the  presence  and  hearing  of  a  number  of  persons 
present  and  having  an  opportunity  of  bidding  thereat,  when 

came  J.  S.,  who  bid  to  pay  therefor  the  sum  of dollars, 

and  said  sum  being  more  than  two  thirds  the  appraised  value 


32  AT   LAW. 

of  said  premises,  and  being  the  highest  and  best  bid  offered 
for  said  premises,  I  therefore  publicly  struck  off  and  sold  to 
the  said  J.  S.  the  said  lands  and  tenements  for  the  said  sum 

of dollars,  and  the  undersigned  brings  said  money  into 

court,  and  awaits  its  further  order  in  the  premises. 

H.  C, 
United  States  Marshal  for  the 
district  of . 


No.  47. 
Fieri  Facias. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Marshal 
of  the District  of ,  Greeting: 

You  are  hereby  commanded,  that  of  the  goods  and  chattels, 
and  for   want  thereof,  then  of  the  lands  and  tenements  of 

C.  D,  in  your  district,  you  cause  to  be  made  the  sum  of 

dollars  damages,  and dollars  costs  of  suit,  which,  by  the 

judgment  of  the  district  [or,  circuit]  court  of  the  United  States 

for  the district  of ,  at  the term  thereof,  in  the 

year  1894,  A.  B.  recovered  against  the  said  C.  D.,  with  inter- 
est thereon  from  the  day  of ,  1894,  until  paid,  to- 
gether with  the  further  sum  of dollars,  costs  of  increase 

on  said  judgment ;  and  also  the  costs  that  may  accrue  on  this 
writ. 

And  have  you  the  said  moneys  in  the  said  district  [or,  cir- 
cuit] court,  before  the  judges  thereof,  at  the  city  of ,  in 

said  district,  within  sixty  days  from  the  date  of  this  writ,  to 
be  paid  to  the  persons  entitled  to  receive  the  same.  And 
have  you  then  and  there  this  writ. 

[Add  teste  according  to  court  issuing  the  writ.     See  Nos.  30 
and  31.] 


MISCELLANEOUS   WRITS,    ETC.  33 

No.  48. 

Vendi  Exponas. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Marshal 
of  the district  of ,  Greeting: 

You  are  hereby  commanded  to  expose  to  sale  the  following 

described  property,  viz. :      [Se^  forth  the  descriptwn\ 

which,  according  to  command,  you  have  levied  on,  and 
which  remains  in  your  hands  unsold,  as  you  have  certified  to 
the  judges  of  the  district  [or,  circuit]  court  of  the  United 

States    for  the  district  of aforesaid,    to  satisfy  a 

judgment  of  said  court,  rendered  at  the term  thereof,  in 

the  year ,  in  favor  of  A.  B.  against  C.  D.  for  the  sum  of 

dollars,  and  dollars    costs    of  suit,  with    interest 

thereon  from  the day  of ,  1894,  until  paid,  together 

with  the  further  sum  of dollars,  costs  of  increase  on 

said  judgment ;  and  also  the  costs  that  may  accrue  on  this 
writ.  And  if,  in  your  opinion,  the  property  remaining  in 
your  hands,  not  sold,  will  be  insufiicient  to  satisfy  the  judg- 
ment aforesaid,  then  you  are  hereby  commanded  that  you 
levy  the  same  upon  other  goods  and  chattels,  lands  and  ten- 
ements, or  either,  as  the  law  shall  permit,  being  the  property 
of  the  judgment  debtor;  which,  together  with  the  property  on 
hand  not  sold  as  aforesaid,  will  be  sufficient  to  satisfy  the 
judgment  aforesaid.  And  have  you  the  said  moneys  in  the 
said  district  [or,  circuit]  court,  before  the  judges  thereof,  at 

the  city  of ,  in  said  district,  on  the  third  Tuesday  in  the 

month  of next,  to  be  paid  to  the  persons  entitled  to  re- 
ceive the  same.     And  have  you  then  and  there  this  writ. 

[Add  teste  according  to  the  court  issuing  the  writ.     See  Nos. 
30  and  31.] 


34  AT   LAW. 

No.  49. 

Rule  to  Show  Cause. 

In  the  District  [or,  Circuit]  Court  of  the  United  States, 

District  of . 

A.  B.,  Plaintiff,     ) 


vs.  V  No. . 

C.  D.,  Defendant.  J 

The  President  of  the  United  States  of  America,  to  C.  D., 


You  are  hereby  cited  and  admonished  to  be  and  appear 
before  our  district  [or,  circuit]  court  of  the  United  States, 

within  and  for  the district  of ,  on  ,  the  

day  of ,  1894,  at  10  o'clock  a.  m.,  to  show  cause,  if  any 

you  know  or  have,  why  [here  set  forth  the  grounds  for  the 
rule,  as,  you  should  not  be  attached  for  contempt  of  court  in 
that,  etc7\.  And  it  is  ordered  that  the  marshal  of  this  district 
make  legal  service  and  due  return  of  this  rule  on  or  before 
the  appearance  day  above  noted. 

\Add  teste  according  to  the  court  issuing  the  writ.  See 
Nos.  30  and  31.] 


No.  50. 

Undertaking  in  Attachment. 

The  United  States  of  America, 

District  of ,  ss. 

Whereas,  A.  B.  has  commenced  a  civil  action  against  C.  D. 
in  the  district  \or,  circuit]  court  of  the  United  States  for 

the district  of to  recover  the  sum  of dollars ; 

and,  whereas,  the  said  A.  B.  has  applied  to  the  clerk  of  said 
court,  by  filing  the  necessary  affidavit,  for  an  order  of  attach- 
ment, to  be  issued  in  said  action,  against  the  said  C.  D. 
Now,  therefore,  we,  A.  B.,  E.  P.,  and  G.  H.,  hereby  under- 
take to  the  said  C.  D.  in  the  sum  of dollars,  that  the 

said  A.  B.  shall  pay  the  said  C.  D.  all  damages  which  the 


MISCELLANEOUS  WRITS,    ETC.  35 

said  C.  D.  may  sustain  by  reason  of  said  attachment  if  the 
order  should  have  been  wrongfully  obtained. 

Dated  at this day  of ,  1894. 

A.  B.     [Seal.] 
E.  F.     [Seal.]     . 
G.  H.    [Seal.] 
[Add  acknowledgment  and  justification  of  sureties^  as  in 
No.  36.] 


No.  51. 

Writ  of  Attachment. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America,  to  the  Mar- 
shal of  the District  of ,  Greeting: 

Whereas,  A,  B.  has  this  day,  on  the  necessary  affidavit 
being  filed,  obtained  an  order  of  attachment  against  C.  D.  in 
a  certain  action  of  [jiame  of  action]  now  pending  in  the  dis- 
trict [<?r,  circuit]  court  of  the  United  States,  for  the  

district  of ,  wherein  the  said  A.  B.  is  plaintiff,  and  the 

said  C.  D.  is  defendant,  to  recover  of  the  said  defendant  the 
sum  of dollars. 

Now,  therefore,  you,  the  said  Marshal,  are  hereby  com- 
manded to  attach  and  safely  keep  the  lands,  tenements, 
goods,  chattels,  stocks,  or  interest  in  stocks,  rights,  credits, 
moneys,  and  effects  of  the  said  C.  D.,  defendant,  in  your 
district,  not  exempt  by  law  from  being  applied  to  the  plain- 
tijSf's  claim,  or  so  much  thereof  as  will  satisfy  to  the  said 

plaintiff  his  claim  for dollars,  and  one  hundred  dollars, 

the  probable  cost  of  this  action. 

And  of  this  order  of  attachment,  and  of  your  proceedings 

thereon,  you  will  make  due  return  on  the day  of , 

1894. 

[Add  teste  according  to  the  court  issuing  the  writ.  See 
Nos.  30  and  31.] 


36  AT   LAW. 

No.  52. 

Writ  of  Attachment  for  Contempt. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the District  of ,  Greeting: 

We  command  you  that  you  attach  C.  D.  so  as  to  have  his 
body  before  our  district  [or,  circuit]  court  of  the  United 
States,  within  and  for  the  district  aforesaid,   at  the  court 

rooms  in  the  city  of ,  on  the  day  of  ,  1894, 

then  and  there  to  answer  of  a  certain  contempt  by  him  lately 
committed  against  said  court,  in  that  [sel  forth  briefly  the 
grounds  for  attachment\  and  further  to  do  and  receive  what 
our  said  court  shall  in  that  behalf  consider. 

And  have  you  then  and  there  this  writ. 

\Add  teste  according  to  the  court  issuing  the  writ.  See  Nos. 
30  and  31.] 


No.  53. 

Scire  Facias  to  Revive  a  Judgment   (i). 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  to  the  Marshal  of  the 
District  of ,  Greeting: 

Whereas,  A.  B.,  citizen  of  the  state  of ,  lately  in  our 

circuit  court  of  the  United  States  for  the  district  of 

,  before  our  judges  of  our  said  court  at ,  to  wit:  on 

the day  of ,  18 — ,  by  the  consideration  of  our  said 

court,  recovered  against  C.  D.  a  judgment  for  the  sum  of 

dollars  for  his  debt,  as  well  as  fifty  dollars  for  his  costs  and 
charges  by  him  about  his  suit  in  that  behalf  expended, 
whereof  the  said  defendant  is  convict,  as  appears  to  us  of 
record.  And  whereas,  by  the  insinuation  of  the  said  A.  B., 
we  have  in  our  said   court  understood,  that  although    the 


MISCELLANEOUS  WRITS,    ETC.  37 

judgment  in  form  aforesaid  be  given,  yet  execution  thereof 
still  remains  to  be  done,  whereof  he  besought  us  to  grant 
unto  him  in  his  behalf  a  proper  remedy,  and  we,  being  will- 
ing that  what  is  right  and  just  should  be  done  herein,  do 
command  you,  the  said  marshal,  that,  by  good  and  lawful 
men  of  your  bailiwick,  you  give  notice  to  the  said  C.  D.  that 

he  be  and  appear  before  our  judges  at ,  at  our  said  court, 

there  to  be  held  for  the  district  aforesaid,  the  Monday 

of next,  to  show  if  anything  he  can  say  why  the  said 

judgment  should  not  be  revived,  and  the  lien  continued,  and 
why  the  said  plaintiff  ought  not  to  have  his  execution  against 
C.  D.  for  debt,  interest  and  cost  aforesaid,  according  to  the 
force,  form  and  effect  of  the  recovery  aforesaid,  if  he  shall 
think  fit.  And  further  to  do  and  receive  whatsoever  our  said 
court  shall  then  and  thereof  and  concerning  him  in  this  behalf 
consider.     And  have  you  then  and  there  the  names  of  those 

by  whom  you  shall  make  known  to  and  this  writ. 

\_Add  teste.     See  No.  31.] 

( I )  As  to  when  this  writ  may  be  employed  see  Foster's  Fed,  Prac, 
Sec.  368<^.  The  rule  of  practice  is  that  of  the  state  in  which  proceed- 
ings are  had.  See  McKnight  vs.  Craig's  Adm.,  6  Cranch,  183,  (187); 
Walden  vs.  Craig,  v.  14  Pet.,  147  (151) ;  Kenosha,  etc.,  R.  R.  vs.  Sperry, 
3  Biss.,  309. 


No.   54. 

W^rit  of  Seizure. 

See  under  title  "  Admiralty,"  which  form  can  be  used  in 
revenue  cases,  with  few  apparent  changes. 


No.  55. 

W^rit   in  Admiralty. 

See  under  title  "Admiralty." 


38  AT   LAW. 

No.  56. 

Writ  of  Venire  for  Jury. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Marshal 
of  the district  of ,  Greeting : 

We  command  you  to  summon,  without  delay,  [here  state 
the  names  and  addresses  of  all  the  jurors^  to  be  and  appear 
before  our  district  [or,  circuit]  court  of  the  United  States, 
within  and  for  the  district  aforesaid,  at  the  court-rooms  in  the 

city  of ,  on ,  the day  of ,  1894,  at  10  o'clock 

a.  m.,  then  and  there   to  serve  as  petit  \or^  grand]  jurors  for 

and  during  the term,  1894,  of  said  court,  and  not  depart 

the  court  without  the  leave  thereof. 

Hereof  fail  not,  and  have  then  and  there  this  writ,  with 
your  proceedings  thereon. 

\Add  teste  according  to  the  court  issuing  the  writ.  See  Nos. 
30  and  31.] 


No.  57. 

Writ  of  Possession  or  Assistance  (i). 

The  United  States  of  America, 

District  of ,  ss. 

The   President  of  the  United  States  of  America  to  R.  P., 

Special  Master  Commissioner  of  the  Circuit  Court  of  said 

District,  Greeting: 
Whereas,  according  to  the  tenor  and  true  meaning  of  a 
decree  in  equity  in  a  certain  cause  depending  in  our  circuit 
court  of  the  United  States  within  and  for  the  district  afore- 
said, wherein  A.  B.  is  plaintiff,  and  C.  D.,  and  others,  defend- 
ants, it  was  decreed  that  C.  D.  deliver  possession  to  A.  B. 
of  the  messuage,  lands  and  premises,  situate  in  the  town- 
ship of ,  in  the  county  of ,  and  state  of ,  and 

bounded  and  described  as  follows:  [set forth  description.'] 


MISCELLANEOUS   WRITS,    ETC.  39 

The  whole  tract  above  described  being  the  same  premises 
heretofore  conveyed  to  T.  F.,  and  by  him  conveyed  to  C.  D. 

by  deed  dated  the day  of ,  1894,  and  recorded  in 

book  ,  page  ,  of  said  county  records.     Yet 

he,  the  said  C.  D.,  and  others,  ill-disposed  persons,  his  accom- 
plices, have  refused  to  pay  obedience  to  said  decree,  and 
detain  and  keep  possession  of  the  said  messuage,  lands  and 
premises,  in  manifest  contempt  of  us,  and  our  said  court. 

Know  ye  therefore,  that  we  being  willing  and  desirous 
that  justice  should  be  done  to  the  said  A.  B.  in  this  behalf, 
do  give  unto  you  full  power  and  authority  to  place  and  put 
the  said  A.  B.  and  his  heirs  and  assigns,  without  delay,  into 
the  full,  peaceable  and  quiet  possession  of  all  and  singular  the 
said  messuage,  lands  and  premises,  with  their  appurtenances, 
according  to  the  true  intent  and  meaning  of  the  said  decree ; 
and  herein  you  are  not  in  any  wise  to  fail. 

[Add  teste.     See  No.  31.] 

(i)  See  Foster's  Fed.  Prac,  Sec.  348,  9th  Equity  Rule  and  Desty's 
Fed.  Proc,  p.  1140. 


No.  58. 
Writ  of  Error  to  the  U.  S.  Supreme   Court, 

The  United  States  of  America,  ss. 
The  President  of  the  United  States  of  America  to  the  Judges 

of  the  Circuit  Court  of  the  United  States  for  the 

district  of ,  Greeting: 

Because  in  the  records  and  proceedings,  and  also  in  the  ren- 
dition of  the  judgment  of  a  plea  which  is  in  the  said  circuit 
court,  before  you,  between  A.  B.,  plaintijff,  and  C.  D.,  defend- 
ant, a  manifest  error  has  happened,  to  the  great  damage  of 
the  said  A.  B.  [or,  C.  D.],  as  by  his  complaint  appears.  We 
being  willing  that  the  error,  if  any  has  been,  should  be  duly 
corrected,  and  full  and  speedy  justice  done  to  the  parties 
aforesaid  in  this  behalf,  do  command  you,  if  judgment  be 
therein  given,  that  under  your  seal,  distinctly  and  openly, 


40  AT    LAW. 

you  send  the  record  and  proceedings  aforesaid,  with  all  things 
concerning  the  same,  to  the  supreme  court  of  the  United 
States,  together  with  this  writ,  so  that  you  may  have  the 

same  at  the  city  of  Washington  on  the  day  of 

next  (i),  in  the  said  supreme  court,  to  be  then  and  there  held, 
that  the  record  and  proceedings  aforesaid  being  inspected,  the 
said  supreme  court  may  cause  further  to  be  done  to  correct 
that  error,  what  of  right,  and  according  to  the  laws  and  cus- 
toms of  the  United  States,  should  be  done. 
[Add  teste.     See  No.  31.] 

(i)  Not  exceeding  thirty  days  from  day  of  signing  (see  8th  U.  S. 
Supreme  Court  Rule),  except  where  time  is  extended  to  sixty  days. 
See  9th  U.  S.  Supreme  Court  Rule,  clause  4. 


No.  59. 

Citation  to  Appellee  (i). 

The  United  States  of  America,  ss. 
To  A.  B.  {or,  C.  D.],  Greeting: 

Whereas,  C.  D.  \or.,  A.  B.],  has  lately  appealed  to  the 
supreme  court  of  the  United  States,  from  a  decree  lately  ren- 
dered in  the  district  [<?r,  circuit]  court  of  the  United  States 

for  the district  of ,  made  in  favor  of  you,  the  said 

A.  B.  \or  C.  D.],  and  has  filed  the  security  required  by  law; 
you  are    therefore   hereby    cited    to  appear  before   the  said 

supreme  court,  at  the  city  of  Washington,  on  the day 

of next  (2),  to  do  and  receive  what  may  appertain  to 

justice  to  be  done  in  the  premises. 

Given  under  my  hand  at  the  city  of ,  in  the cir- 
cuit, this day  of ,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and .                                       J.  S., 

Judge  of  the  Circuit  Court  of  United  States 
for district  of . 

(i)  See  R.  S.,  Sec.  999;    Desty's    Fed.  Proc,  Sec.  532;    also  Act  of 
March  3,  189 1,  26  Stat,  at  L.,  826,  Sec.  5. 
(2)  See  note  to  No.  58. 


MISCELI^ANEOUS   WRITS,    ETC.  4 1 

No.  60. 

Citation  to  Defendant  in  Error  (i). 

The  United  States  of  America,  ss. 
To  C.  D.,  Greeting : 

You  are  hereby  cited  and  admonished  to  be  and  appear  at 
a  supreme  court  of  the  United  States,  to  be  holden  at  the 
city  of  Washington,  on  the day  of next  (2),  pur- 
suant to  a  writ  of  error  filed  in  the  clerk's  office  of  the  dis- 
trict [or,  circuit]  court   of  the  United  States  for  the  

district   of  ,    wherein   A.  B.  is    plaintiff  and    you    are 

defendant  in  error,  to  show  cause,  if  any  there  be,  why  the 
judgment  rendered  against  the  said  plaintiff  in  error  as  in 
the  said  writ  of  error  mentioned  should  not  be  corrected, 
and  speedy  justice  be  done  to  the  parties  in  that  behalf. 

Given  under  my  hand,  etc.  [as  in  No.  59]. 

(i)  See  note  i  to  No.  59. 
(2)  See  note  to  No.  58. 


No.  61. 

"Writ  of  Injunction. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  C.  D., 
Greeting : 

Whereas,  A.  B,,  citizen  of  the  state  of ,  has  filed  on 

the  chancery  side  of  the  circuit  court  of  the  United  States 
for  the district  of ,  a  bill  against  C.  D.,  and  has  ob- 
tained an  allowance  for  an  injunction,  as  prayed  for  in  said 
bill.  Now,  therefore,  we  having  regard  to  the  matters  in 
said  bill  contained,  do  hereby  command  and  strictly  enjoin 
you,  the  said  C.  D,,  [set  forth  from  doing  what  he  is  re- 
strained, also  the  names  of  all  persons  so  restrained,^  which 
commands  and  injunctions  you  are  respectively  required  to 


43  AT   LAW. 

observe  and  obey,  until  our  said  circuit  court  shall  make 
further  order  in  the  premises. 

Hereof  fail  not,  under  penalty  of  the  law  thence  ensuing. 

[Add  teste.     See  No.  31.] 

No.  62. 

Writ  of  Injunction  in  Patent  Cases. 

For  form  of  Writ  of  Injunction  in  Patent  Cases  see  under 
title  "Patents." 


No.  63. 

Injunction  Bond^ 

The  United  States  of  America, 
District  of ,  ss. 

Know  all  men  by  these  presents,  that  C.  D.,  E.  F.,  and 
G.  H.  are  held  and  firmly  bound  unto  A.  B.  in  the  sum 
of dollars,  to  the  payment  of  which  they  bind  them- 
selves, each  for  himself  and^  his  heirs,  executors  and  admin- 
istrators firmly  by  these  presents. 

Sealed  with  their  seals  and  dated  this  day  of , 

1894. 

The  condition  of  the  above  obligation  is  such,  that  whereas, 
A.  B.,  citizen  of  the  state  of ,  having  filed  on  the  chan- 
cery side  of  the  circuit  court  of  the  United  States  for  the 

district  of a  bill  against  the  said  C.  D.,  and  having 

obtained  an  allowance  of  an  injunction,  as  prayed  for  in  said 
bill,  from  said  court.  Now,  if  the  said  CD.  shall  abide  the 
decision  of  said  court,  and  pay  all  moneys  and  costs  which 
shall  be  adjudged  against  him  in  case  the  said  injunction 
shall  be  dissolved,  then  these  presents  shall  be  void;  other- 
wise to  remain  in  full  force. 

C.  D.  \Seai:\ 
E.  F.  \seal?^ 
G.  H.     \seai:\ 

[Add  acknowledgment  and  justification  of  sureties.  See 
No.  36.] 


MISCELLANEOUS  WRITS,   ETC.  43 

No.  64. 
Injunction  Bond  in  Patent^Cases. 
For  form  of  Bond  see  under  title  "Patents," 


No.  65. 

Writ  of  Certiorari. 

For  form  of  Writ  of  Certiorari  see  under  the  titles  "Re- 
moval of  Causes"  and  "Appellate  Proceedings." 


No.  66. 

^V^it  of  Ne  Exeat  Republica  (i). 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the District  of ,  Greeting: 

Whereas,  it  is  represented  to  us  in  our  circuit  court  of  the 

United  States  for  the district  of in  equity,  on  the 

part  of  A.  B.,  plaintiff,  against  C.  D.,  defendant  (among  other 
things),  that  he,  the  said  defendant,  is  greatly  indebted  to  the 
said  plaintiff,  and  designs  quickly  to  go  into  parts  without 
the  United  States  (as  by  oath  made  on  that  behalf  appears), 
which  tends  to  the  great  prejudice  and  damage  of  the  said 
plaintiff. 

Therefore,  in  order  to  prevent  this  injustice,  we  do  hereby 
command  you  that  you  do,  without  delay,  cause  the  said 
C.  D.  personally  to  appear  before  you,  and  give  sufficient 

bail  or  security  in  the  sum  of dollars  that  the  said  C.  D. 

will  not  go  or  attempt  to  go  into  parts  without  the  United 
States  without  leave  of  our  said  court;  and  in  case  the  said 
C.  D.  shall  refuse  to  give  such  bail  or  security  then  you  are 


44  AT   LAW. 

to  commit  the  said  C.  D.  to  our  next  prison,  there  to  be  kept 
in  safe  custody  until  he  shall  do  it  of  his  own  accord;  and 
when  you  shall  have  taken  such  security  you  are  forthwith 
to  make  and  return  a  certificate  thereof  to  us  in  our  said  cir- 
cuit court  of  the  United  States  for  the district  of 

distinctly  and  plainly  under  your  hand,  together  with  this 
writ. 

[Add  teste,  as  in  No.  31.] 

(i)  See  Foster's  Fed.  Prac,  pp.  323,  455  et  seq. ;  Desty's  Fed.  Proc., 
Sec.  237  ;  R.  S.,  Sec.  717.  See  also  Beach's  Modern  Eq.  Prac,  chapter 
on  ne  exeat. 


IN  EQUITY. 

FORMAL  PARTS  OF  A  BILL. 


No.  67, 

Caption  and  Address. 

The  District  [or,  Circuit]  Court  of  the  United  States, 
in  and  for  the District  of . 

A.  B.,  Plaintiff  (i),^ 

vs.  >      In  Equity.     No. . 

C.  D.,  Defendant.  J 

To  the  Honorable,  the  Judges  of  the  District  [or,  Circuit] 
Court  of  the  United  States,  in  and  for  the  District  of . 

( I )  It  is  the  practice  with  many  pleaders  to  preserve  the  name 
"  complainant "  in  suits  of  equity,  but  the  United  States  Supreme  Court 
in  promulgating  the  Rules  in  Equity  use  "  plaintiff,  "  with  very  few  ex- 
ceptions, to  designate  the  party  bringing  a  bill  in  equity. 


No.  68. 

Commencement  or  Introduction  (i). 

A.  B.,  of ,  and  a  citizen  of  the  state  of ,  brings  this^ 

his  bill,  against  C.  D.,  of ,  a  citizen  of  the  state  of , 

and  inhabitant  of  the district  of . 

And  thereupon  your  orator  complains  and  says: 

(i)  This  form  is  suggested  by  the  United  States  Supreme  Court. 
See  2oth  Rule  in  Equity;  Desty's  Fed.  Proc,  p.  1146;  Foster's  Fed. 
Prac,  Sec.  66 ;  Beach's  Modern  Equity  Prac,  Sec.  88. 

45     ' 


46  IN   EQUITY. 

No.  69. 

Commencement  or  Introduction  by  other  than  an 
Individual  (i). 

Nos.  3,  4,  and  5,  in  connection  with  No.  68,  will  form 
sufficient  guide  for  the  introduction  by  a  corporation,  co- 
partnership, or  an  alien. 

(i)  See  notes  to  No.  68. 


No.  70. 

The  Stating  Part  (i). 

\After  setting  out  the  facts  ^  showing  plaintiff'' s  equity?^  And 
your  orator  \or^  the  plaintiff]  hoped  that  the  said  C.  D.,  the 
defendant,  would  have  complied  with  the  reasonable  requests 
of  your  orator  [<?r,  the  plaintiflf],  as  in  justice  and  equity  he 
ought  to  have  done. 

(i)  See  Beach's  Modern  Eq.  Prac,  Sec.  89;  Story's  Eq.  (lothed.), 
Sees.  27  and  28. 


No.  71. 

The  Confederating  Part  (i)« 

But  now  so  it  is,  may  it  please  your  honor,  that  the  said  C. 
D.,  combining  and  confederating  with  divers  persons  \or  if 
there  are  several  defendants^  combining  and  confederating  to- 
gether and  with  divers  persons],  at  present  unknown  to  your 
orator  \or^  the  plaintiff],  whose  names,  when  discovered,  your 
orator  \or^  the  plaintiff]  prays  he  may  be  at  liberty  to  insert 
herein  with  apt  words  to  charge  them  as  parties  defendant 
hereto,  and  contriving  how  to  wrong  and  injure  your  orator 
\or^  the  plaintiff]  in  the  premises,  he,  the  said  R.  H.,  abso-  ' 
lutely  refuses  to  comply  with  such  requests,  and  he  at  times  1 
pretends  that,  etc. 

or, 

But  now  so  it  is,  may  it  please  your  honor,  that  the  said  R. 


FORMAL   PARTS   OF  A   BILL.  47 

H.,  L.  M.,  and  N.  M.,  in  concert  with  each  other,  allege  that, 
etc.,  [or,  colluding  and  confederating  with  each  other,  refuse 
to  comply  with  such  requests,  and  pretend  that,  etc.]. 

(i)  See  Foster's  Fed.  Prac,  Sec.  79 ;  Beach's  Modern  Eq.  Prac, 
Sec.  87 ;  Story's  Eq.,  Sec.  29.  The  confederating  part  may  be  omitted, 
2 1  St  Rule  in  Eq. 

No.  72. 

The  Charging  Part  (i). 

That  the  said  defendant  sometimes  alleges  and  pretends 
[znserl  the  supposed  contention  of  defendant^  and  at  other  times 
he  alleges  and  pretends,  etc.,  whereas,  your  orator  \or^  the 
plaintiff]  charges  the  contrary  to  be  the  truth,  and  that,  etc., 
[stating  the  special  matter  zvith  which  plaintiff  meets  defend- 
anfs  supposed  case\. 

( I )  Every  bill  must  contain  sufficient  matter  in  itself  to  maintain 
the  case  of  the  plaintiflF  (Harrison  vs.  Nixon,  9  Peters,  483) ;  but  it  need 
not  allege  or  specially  describe  all  the  evidence  which  is  to  be  put 
into  the  case,  provided  it  contains  allegations  broad  enough  to  cover 
the  evidence  relied  on.  Nesmith  vs.  Calvert,  i  Wood.  &  M.,  34.  While 
the  bill  may  be  framed  with  a  double  aspect,  so  that  if  the  court  decide 
against  the  plaintifiF  upon  one  view  of  his  case  it  may  afford  him  relief 
in  another  (Hobson  vs.  McArthur,  16  Peters,  182),  yet  the  alternative 
case  must  be  the  foundation  for  the  same  relief  Shields  vs.  Barrow, 
17  How.  130.  Two  inconsistent  causes  for  equitable  relief  can  not  be 
joined  in  the  same  bill.     Wilkinson  vs.  Dobbie,  12  Blatchf ,  289. 

The  2ist  Rule  in  Equity  authorizes  the  optional  omission  of  the 
matters  of  excuse  and  pretenses  set  up  by  defendant. 

See  cases  cited  under  21st  Rule  in  Equity  in  Desty's  Fed.  Proc., 
p.  1 147. 

See  also  Foster's  Fed.  Prac.    Sec.  80, 


No.  73. 

The  Jurisdiction  Clause  (i). 

All  which  actings,  doings,  and  pretenses  of  the  said  defend- 
ant [or,  defendants]  are  contrary  to  equity  and  good  con- 
science, and  tend  to  the  manifest  wrong,  injury  and  oppres- 


48  IN   EQUITY. 

sion  of  your  orator  [or,  the  plaintiff]  in  the  premises.  In 
consideration  whereof,  and  forasmuch  as  your  orator  [or,  the 
plaintiff]  is  remediless  in  the  premises,  at  and  by  the  strict 
rules  of  the  common  law,  and  can  only  have  relief  in  a  court 
of  equity,  where  matters  of  this  nature  are  properly  cogniza- 
ble and  relievable.     To  the  end,  therefore,  etc. 

(I)  This  clause  may  be  omitted.  See  21st  Rule  in  Equity.  But 
where  the  jurisdiction  depends  on  citizenship  of  the  parties  in  differ- 
ent states,  this  must  appear  somewhere  in  the  bill,  or  the  omission 
will  be  fatal  at  any  stage  of  the  cause,  unless  cured  by  amendment. 
Wood  vs.  Mann,  i  Sumn.  578.  See  also  Act  of  March  3,  1887;  25 
St.  at  L.,  p.  433.  Jurisdictional  facts  stated  in  the  bill  will  be  deemed 
to  be  true  in  a  suit  on  a  decree  when  collaterally  attacked.  Harrison 
vs.  Harrison,  56  Am.  Dec.  227. 

See  Beach's  Modern  Eq.  Prac,  Sec.  87  ;  Story's  Eq.  (loth  ed.),  Sec.  34 ; 
Foster's  Fed.  Prac,  Sec.  81. 


No.  74. 

The  Interrogating  Part  (i). 

To  the  end,  therefore,  that  the  said  defendants  may,  if 
they  can,  show  why  your  orator  should  not  have  the  relief 
hereby  prayed,  and  may,  upon  their  several  and  respective 
corporal  oaths,  and  according  to  the  best  and  utmost  of  their 
several  and  respective  knowledge,  remembrance,  information, 
and  belief,  full,  true,  direct,  and  perfect  answer  make  to  such 
of  the  several  interrogatories  hereinafter  numbered  and  set 
forth,  as  by  the  note  hereunder  written  they  are  respectively 
required  to  answer,  that  is  to  say : 

1.  Whether,  etc. 

2.  Whether,  etc. 

(i)  See  43d  Rule  in  Equity;  Beach's  Modern  Eq.  Prac,  Sec.  90; 
Story's  Eq.  (loth  ed.),  Sees.  35,  note  2,  36,  37,  and  38;  Foster's  Fed. 
Prac,  Sec.  82;  Langdon  vs.  Goddard,  3  Story,  13. 


FORMAL   PARTS   OF   A   BILL.  49 

No.  75. 

The  Prayer  for  Relief  (i). 

And  that  an  account  may. be  taken  by  and  under  the  direc- 
tion and  decree  of  this  honorable  court,  etc.,  etc.  And  that 
the  defendant  may  be  decreed  to  pay  unto  your  orator  [or^ 
the  plaintiff],  etc.,  etc.  And  that  your  orator  [or,  the  plain- 
tiff] may  have  such  further  or  other  relief  in  the  premises 
as  the  nature  of  the  circumstances  of  this  case  may  require, 
and  to  your  honor  shall  seem  meet. 

(i)  See  Beach's  Eq.  Prac,  Sees.  91  and  92,  and  cases  cited  ;  Foster's 
Fed.  Prac,  Sec.  83. 

The  2 1  St  Rule  in  Equity  provides  that,  "  The  prayer  of  the  bill  shall 
ask  the  special  relief  to  which  the  plaintiff  supposes  himself  entitled, 
and  also  shall  contain  a  prayer  for  general  relief,  and,  if  an  injunction, 
or  a  writ  of  ne  exeat  regno,  or  any  other  special  order  pending  the 
.       suit,  is  required,  it  shall  also  be  specially  asked  for." 
^  A  prayer  for  general  relief  is  a  prayer  for  any  relief  the  court  can 

■^       give,  except  by  injunction,  upon  the  facts  averred  in  the  bill.     Chicago, 
-^      St.  lyouis,  etc.,  R.  R.  Co.  vs.  McComb,  2  Fed.  Rep.  18. 
ji^  Under  the  prayer  for  general  relief,  other  relief  may  be  granted  than 

•  that  which  is  particularly  prayed  for ;  but  such  relief  must  be  agree- 
►^  able  to  the  case  made  by  the  bill.  English  vs.  Foxall,  2  Peters,  595  ; 
m/  Boone  vs.  Chiles,  10  Peters,  177  ;  Hobson  vs.  McArthur,  16  Peters,  182. 
Thus,  although  the  complainant  in  a  bill  for  the  specific  execution  of 
a  contract  may  not  have  specifically  claimed  in  his  bill  a  decree  for 
rents  and  profits  while  in  the  possession  of  the  defendant,  he  may 
claim  it  in  the  appellate  court,  under  the  prayer  for  general  relief 
Watts  vs.  Waddle,  6  Peters,  389.  But  where  a  bill  charges  actual  and 
intentional  fraud,  and  prays  for  relief  on  that  ground,  the  complain- 
ant can  not,  under  the  prayer  for  general  relief,  rely  on  circumstances 
which  might  amount  to  a  case  for  relief,  under  a  distinct  head  of 
eqiyfy ^although  those  circumstances  substantially  appear  in  the  bill, 
but-ar^cl^rged  in  aid  of  the  charge  of  actual  fraud.  Eyre  vs.  Potter, 
i5THcw.,^2. 

ftie<ge«eral  prayer  for  relief  and  sufficient  facts  alleged  therefor 
saves  ^  b^l  from  demurrer,  though  the  special  relief  prayed  for  be  in- 
ajji^ojttri^e.     Patrick  vs.  Isenhart,  20  Fed.  Rep.,  339. 

Ayh^e*^  specific  relief  is  asked  for,  even  though  there  be  a  prayer 
foi^^etol  relief  the  circuit  court  can  not  grant  a  relief  which  is  incon- 
sisteifC  with,  or  entirely  different  from,  that  which  is  prayed  for.  Wil- 
s<5n  vs.  Graham,  4  Wash.,  53. 


50  IN    EQUITY. 

No.  76. 

A  More  Extended  Form  (i). 

[Prayer  for  answer — oath  waived — injunction  against  pro- 
ceeding at  law — declaration  of  trust — conveyance^  "  To  the 
end,  therefore,  that  the  plaintiffs  may  have  that  relief  which 
they  can  only  obtain  in  a  court  of  equity,  and  that  the  said 
defendants  may  answer  the  premises,  but  not  upon  oath  or 
affirmation,  the  benefit  whereof  is  expressly  waived  by  the 
plaintiffs,  and  that  the  said  defendants,  who  are  plaintiffs  as 
aforesaid  in  the  said  action  at  law,  may  be  perpetually  en- 
joined from  further  prosecuting  the  same,  and  that  it  may  be 
declared  that  the  said  lands  are  charged  with  a  trust  in  favor 
of,  and  ought  to  be  held  for,  the  use  and  benefit  of,  etc.,  and 
that  the  said  defendants,  or  so  many  and  such  of  them  as 
shall  appear  to  have  the  legal  title  to  said  lands,  may  be  de- 
creed to  convey  such  legal  title,  free  of  all  encumbrances 
done  or  suffered  by  them,  or  any  or  either  of  them  unto  the 
plaintiffs,  in  their  said  capacity,  to  hold  to  them  and  their, 
etc.,  upon  the  trusts  aforesaid,  and  for  such  further  or  other 
relief  as  the  nature  of  this  case  may  require,  and  to  your 
honors  shall  seem  meet." 

(i)  Earl  vs.  Wood,  8  Cush.,  430. 


No.  77. 

Another  Form  of  Prayer  for  Injunction. 

Wherefore  your  orator  prays  the  court  to  now  grant  him  a 
writ  of  injunction,  restraining  and  enjoining  the  said  defend- 
ants [insert  the  special  matters  sought  to  be  enjoined'\^  until 
the  further  order  and  decree  of  this  court  in  the  premises. 


No.  78. 
Prayer  for  the  Production  of  Deeds,  Papers,  etc.  (i). 

And  that  the  said  defendants  may  set  forth  a  list,  or  sched- 
ule, and  description  of  every  deed,  book,  account,  letter, 
paper  or  writing  relating  to  the  matters  aforesaid,  or  either 


FORMAL   PARTS   OF  A   BILL.  5I 

of  them  ;  or  wherein  or  whereupon  there  is  any  note,  memo- 
randum, or  writing  relating  in  any  manner  thereto,  which 
now  are,  or  ever  were,  in  their  or  either,  and  which,  of  their 
possession  or  power,  and  may  deposit  the  same  in  the  office 
of  the  clerk  [or,  in  the  hands  of  one  of  the  masters]  of  this 
honorable  court,  for  the  usual  purposes  ;  and  otherwise  that 
the  said  defendants  may  account  for  such  as  are  not  in  their 
possession  or  power, 
(i)  Dan.  Ch.  Pr.,  p.  1888. 

No.  79. 

Prayer  for  Subpoena. 

May  it  please  your  honors  to  grant  unto  the  plaintiff  a 
writ  of  subpoena,  to  be  directed  to  the  said  C.  D.  (i),  etc., 
thereby  commanding  them,  and  each  of  them,  at  a  certain 
time,  and  under  a  certain  penalty  therein  to  be  limited,  per- 
sonally to  appear  before  this  honorable  court  [or,  your  honors 
in  this  honorable  court],  and  then  and  there  full,  true,  direct, 
and  perfect  answer  make  to  all  and  singular  the  premises, 
and  further  to  stand  to,  perform  and  abide  such  further  order, 
direction  and  decree  therein  as  to  this  honorable  court  [or,  to 
your  honors\  shall  seem  meet  [or,  as  shall  seem,  agreeable  to 
equity  atid  good  co7iscience\  (2). 

(i)  The  pra5-er  ^or  sjibpoena  must  contain  the  names  of  all  the  de- 
fendants. See  23d  Rule  in  Equity';  Beach's  Modern  Eq.  Prac,  Sec. 
94,  and  notes ;  Foster's  Fed.  Prac,  Sec.  85,  and  cases  cited. 

(2)  The  words  in  italics  must  be  omitted  in  bills  merely  for  discov- 
ery, or,  to  perpetuate  the  testimony  of  7i>it?iesses.  Story  Eq.  PI.,  Sec.  44, 
note ;  Barton's  Suit  in  Eq.  43,  note  i  ;  Equity  Drafts,  6. 


No.  80. 

Another  Form  of  Prayer  for  Subpoena. 

To  the  end  that  your  orator  may  obtain  the  relief  to  which 
he  is  justly  entitled  in  the  premises,  he  now  prays  the  court 
to  grant  him  due  process  by  subpoena  directed  to  the  said 


52  IN   EQUITY. 

C.  D.  and  E.  F.,  defendants  hereinbefore  named,  requiring 
and  commanding  each  of  them  to  appear  herein  and  answer 
under  oath  [or,  but  not  under  oath,  the  same  being  expressly 
waived]  the  several  allegations  in  this  your  orator's  bill  con- 
tained. 


No.  81. 

Prayer    for   Process    W^here    the    Government    is    a    De- 
fendant. 

And  may  it  please  your  honors  that  the  district  attorney  of 

the  United  States  for  the  district  of ,  on  being  attended 

with  a  copy  of  this  bill,  may  appear  and  put  in  his  answer 
thereto,  and  may  stand  to  and  abide  such  order,  direction, 
and  decree  in  the  premises  as  to  your  honors  shall  seem 
meet,  and  your  orator  shall  ever  pray,  etc. 


No.  82. 

Form  of  Prayer  for  Writ  of  Ne  Exeat  (i). 

Wherefore  your  orator  prays  the  court  to  grant  him  a  writ 
of  ne  exeat  republica,  restraining  and  forbidding  the  said 
C.  D.,  defendant  hereinbefore  named,  from  departing  beyond 
the  limits  of  the  United  States  without  leave  of  this  court 
first  had. 

(i)  See  R.  S.,  Sec.  717;  Desty's  Fed.  Proc,  Sec.  237,  and  cases  there 
cited ;  Foster's  Fed.  Prac,  Sec.  83.    See  also  note  to  No.  75. 


No.  83. 

Prayer  for  Writ  of  Certiorari. 

May  it  please  your  honors,  therefore,  to  grant  unto  your 
orator  a  writ  of  certiorari,  to  be  directed  to  the  justices  of 

the  said Court  of ,  thereby  commanding  them  upon 

the  receipt  of  the  said  writ  to  certify  and  remove  the  said 


FORMAL   PARTS   OF  A   BILL.  53 

bill  and  all  proceedings  thereon  into  this  honorable  court; 
and  to  stand  to  and  abide  such  order  and  direction  as  to 
your  honors  shall  seem  meet,  and  the  circumstances  of  the 
case  require,  and  your  orator  shall  ever  pray,  etc. 


No.  84. 

Signature  of  Bills. 

All  bills  musi  be  signed  by  counsel.  See  24th  Rule  in 
Equity;  Beach's  Modern  Eq.  Prac,  Sec.  84,  and  cases  cited; 
Foster's  Fed.  Prac,  Sec.  86,  and  cases  cited.  Signature  on 
the  back  of  the  bill  has  been  held  sufficient.  Dwight  vs. 
Humphreys,  3  McLean,  104. 


No.  85. 

Verification  (i). 

The  United  States  of  America, 

District  of ,  ss. 

On  this day  of ,  1894,  before  me  personally  ap- 
peared A.  B.,  the  above  named  plaintiff,  who  made  solemn 
oath  that  he  had  read  the  foregoing  bill  of  complaint,  [<?r, 
answer,  as  may  be]  subscribed  by  him,  and  knows  the  con- 
tents thereof,  and  that  the  same  is  true  of  his  own  knowledge, 
except  as  to  the  matters  therein  stated  on  information  and 
belief,  and  as  to  those  matters  he  believes  it  to  be  true. 

J.N., 

[Seal^  {Official  title:] 

(1)  See  Beach's  Mc^ern  Equity  Prac,  Sec.  85  ;  Foster's  Fed.  Prac, 
Sec  87.  Affidavit  when  a  stockholder  brings  a  bill  against  the 
corporation,  see  94th  Rule  in  Equity. 


54  IN   EQUITY. 


BILLS  IN  SPECIAL  CASES. 


No.  86. 


Creditor's  Bill  (i)  by  Simple  Contract  Creditors  Against 
Executors  of  Deceased  Debtor,  for  Payment  of  His 
Debts. 

[Caption^  address^  and  introdziction.'] 

Your  orator  and  F.  H.,  creditors  by  simple  contract  of  J. 
F.,  late  of,  etc.,  deceased,  on  behalf  of  themselves  and  all 
others,  the  creditors  of  the  said  J.  F.,  who  shall  come  in  and 
seek  relief  by  and  contribute  to  the  expense  of  this  suit,  that 
the  said  J.  F.,  at  the  time  of  his  death,  was  justly  and  truly 

indebted  to  your  orator,  A.  B.,  in  the  sum  of dollars  (2)  and 

upwards,  for  goods  sold  and  delivered,  and  moneys  paid, 
laid  out,  and  expended  to  and  for  his  use,  and  that  the  said 
J.  F.  was  also  justly  and  truly  indebted  to  your  orator,  F.  H., 
in  the  sum  of dollars  (2)  and  upwards,  for,  etc. 

And  your  orators  further  show  unto  your  honors  that  the 
said  J.  F.,  in  his  lifetime,  and  at  the  time  of  his  death,  was 
possessed  of,  or  well  entitled  unto,  a  considerable  personal 
estate,  and  being  so  possessed,  departed  this  life  on  or  about 

r,  having  first  duly  made  his  last  will,  bearing  date,  etc., 

and  thereby  appointed  C.  D.  and  E.  F.,  the  defendants  here- 
in, the  executors  thereof,  as  in  and  by  the  said  will,  or  the 
probate  thereof,  to  which  your  orators  crave  leave  to  refer 
when  produced  to  this  honorable  court,  will  appear. 

And  your  orators  further  show  unto  your  honors  that  the 
said  C.  D.  and  E.  F.  duly  proved  the  said  will  in  the  proper 
court,  and  undertook  the  executorship  thereof,  and  possessed 
themselves  of  the  personal  estate  and  effects  of  the  said  tes- 
tator to  a  very  considerable  amount,  and  more  than  suflScient 
to  satisfy  his  just  debts  and  funeral  expenses. 


BILLS   IN    SPECIAL   CASES.  55 

And  your  orators  further  show  unto  your  honors  that  the 
said  C.  D.  and  E.  F.,  having  possessed  themselves  of  the  said 
testator's  personal  estate  and  eflfects  as  aforesaid,  your  orators 
have  made  and  caused  to  be  made  several  applications  to 
them,  the  said  C.  D.  and  E.  F.,  and  requested  them  to  pay  and 
satisfy  unto  your  orators  their  respective  demands,  with  which 
just  and  reasonable  requests  your  orators  well  hoped  that  the 
said  C.  D.  and  E.  F.  would  have  complied,  as  in  justice  and 
equity  they  ought  to  have  done.  But  now  so  it  is,  etc.  And 
the  said  defendants  pretend  that  the  said  testator's  personal 
estate  was  small  and  inconsiderable,  and  has  already  been 
exhausted  in  the  payment  of  his  funeral  expenses  and  just 
debts.  Whereas  your  orators  charge  that  the  said  testator's 
personal  estate  and  effects  were  more  than  sufficient  to  dis- 
charge all  his  just  debts  and  funeral  expenses,  and  so  it  would 
appear  if  the  said  defendants  would  set  forth  a  full,  true,  and 
particular  account  of  all  and  ever>^  the  personal  estate  and 
effects  of  the  said  testator  come  to  their,  or  either  of  their, 
hands  or  use,  and  also  a  full,  true,  and  particular  account  of 
the  manner  in  which  they  have  disposed  of  or  applied  the 
same,  but  which  they  refuse  to  do.  All, which  actings, 
etc.  [^See  Nos.  'ji  to  74,  interrogating  to  the  statitig  and 
charging  partsT^  And  that  an  account  may  be  taken  of  the 
moneys  due  to  your  orators  in  respect  of  their  said  several 
demands,  and  of  others  the  debts  owing  by  the  said  J.  F.  at 
the  time  of  his  death  ;  and  that  if  the  said  defendants  shall 
not  admit  assets  of  the  said  testator,  then  that  an  account 
may  also  be  taken  of  the  personal  estate  and  effects  of  the 
said  testator  possessed  or  received  by,  or  by  the  order  or  for 
the  use  of  the  said  defendants,  or  either  of  them,  and  that 
such  personal  estate  may  be  applied  in  a  due  course  of  ad- 
ministration. And  that  your  orators  and  the  said  other 
unsatisfied  creditors  by  simple  contract  of  the  said  testator 
may  have  such  further  or  other  relief  in  the  premises  as  to 
your  honors  shall  seem  meet,  and  the  circumstances  of  the 
case  may  require.     May  it  please,  etc. 

\Pray  subpoena  against  C.  D.  and  E.  Fi\ 

\yerification  as  in  No.  85.] 


56  IN    EQUITY. 

(i)  The  origin  of  the  jurisdiction  in  case  of  creditors'  bills  was  in  the 
narrowness  of  common-law  remedies  by  writs  of  execution,  which  were 
confined  to  those  estates  and  interests  recognized  by  the  law,  and  did 
not  extend  to  those  which  were  equitable  in  their  nature ;  but  statutes 
both  in  England  and  in  many  of  the  states  have  greatly  extended  the 
scope  of  writs  of  execution  so  as  to  afford  an  adequate  remedy  in  cases 
where  formerly  the  party  was  compelled  to  resort  to  a  creditor's  bill. 
"Where  the  remedy  still  exists,  a  judgment  must  first  be  obtained,  and 
certain  steps  taken  towards  enforcing  it  before  a  bill  can  be  filed.  See 
Pom.  Eq.  Jur.,  Sec.  1415.  See  also  Johnson  vs.  Waters,  iii  U.  S.,  640, 
and  Ager  vs.  Murray,  105  U.  S.,  126. 

(2)  Must  exceed  $2000  in  the  aggregate,  exclusive  of  interest,  to 
give  circuit  court  jurisdiction.  See  Act  of  March  3,  1887,  as  amended 
1888,  25  St.  at  L.  433  ;  Desty's  Fed.  Proc,  Sec.  84 ;  Foster's  Fed.  Prac, 
Sec.  15. 


No.  87. 

Creditors'  Bill  Against  a  Corporation  and  its  Stockholders 
to  Enforce  Statutory  Liability  (i). 

\Caption,,  address^  and  introduction^ 

And  the  plaintiffs  show  that  the  capital  stock  of  said 
corporation  was  fixed  and  limited  by  said  corporation  at 
seven  hundred  and  fifty  thousand  dollars;  and  that  on  the 

of ,  in  the  year ,  and  before  the  whole  amount 

of  the  capital  stock  fixed  and  limited  by  said  corporation  had 
been  fully  paid  in,  and  before  any  certificate  thereof  had 
been  made  and  recorded  as  prescribed  by  law,  the  said  The 
C.  D.  Co.,  by  G.  McK.,  its  treasurer,  duly  authorized  thereto, 
made  and  delivered  to  the  plaintiffs  three  several  promissory 

notes  in  writing,  dated  the  said  day  of ,  one  for 

the  sum  of  fifty  thousand  dollars,  the  other  two  for  fifteen 
thousand  dollars  each,  and  thereby,  for  value  received,  prom- 
ised the  plaintiffs  to  pay  to  them  or  their  order  the  amount  of 

said  notes,  to  wit,  eighty  thousand  dollars,  on  the day 

of ,  in  the  year ,  with  interest  from  the day  of 

,  of  the  year ,  copies  of  which  notes,  with  the  in- 
dorsements thereon,  are  set  out  in  the  copy  of  judgment 
hereto  annexed. 


BILLS   IN   SPECIAL   CASES.  57 

And  the  plaintiflfs  further  show  that  at  the  time  the  said 
The  C.  D.  Co.  made  and  delivered  said  notes  to  the  plaintiffs, 
and  from  the  time  of  its  incorporation  and  organization  until 

the day  of ,  in  the  year ,  the  said  The  C.  D.  Co. 

had  not  given  notice  annually,  as  required  by  the  laws  of  the 

said  state  of ,  in  some  newspaper  printed  in  the  county 

where  the  works  of  said  corporation  were  established,  to  wit, 
the  county  of  E.,  or  in  any  newspaper  printed  in  any  other 
county,  of  the  amount  of  all  assessments  voted  by  the  cor- 
poration, and  actually  paid  in ;  nor  had  it  given  notice  in  any 
newspaper  of  the  amount  of  all  existing  debts  due  from  said 
corporation. 

And  the  plaintiffs  further  show  that  from  the  time  of  the 
incorporation  and  organization  of  the  said  The  C.  D.  Co.  to 
the  time  said  corporation  made  and  delivered  said  notes  to 
the  plaintiffs,  and  for  a  long  time  thereafter,  the  capital  stock, 
fixed  and  limited  by  said  corporation  as  aforesaid,  had  not 
been  fully  paid  in;  nor  has  there,  from  the  time  of  its  organ- 
ization to  the  present  time,  been  any  certificate  of  the  pay- 
ment of  said  capital  stock  made  and  recorded  by  said  corpor- 
ation as  by  law  provided. 

And  the  plaintiffs  further  show  that  on,  to  wit,  the 

day  of ,  in  the  year ,  they  commenced  a  suit  against 

the  said  The  C.  D.  Co.  upon  the  aforesaid  notes,  returnable  to 

the court,  then  next  to  be  holden  at  N.,  within  and  for 

the  said  county  of  E.,  on  the  first  Monday  of  ,  in  the 

year ,  and  duly  entered  said  suit  in  said  court,  and  there 

prosecuted  the  same  to  judgment.     And  at  said  term  of  the 

said  court,  on,  to  wit,  the day  of ,  in  the  year , 

by  consideration  of  the^justice  of  said court,  judgment 

was  rendered  in  said  suit  against  said  The  C.  D.  Co.  in  favor 

of   the   plaintiffs  for  the   sum   of  $ ,    debt,   and    $ , 

costs  of  suit,  and  execution  was  thereupon  issued  by  said 

court,  on,  to  wit,  the day  of  said ,  against  said 

The  C.  D.  Co.  in  favor  of  the  plaintiffs  for  the  said  sum  of 
$ ,  debt,  and  $ ,  costs  of  suit;  copies  of  which  judg- 


58  IN   EQUITY. 

ment,  execution,  and  officer's  return  upon  said  execution  are 
hereto  annexed. 

And  the  plaintiffs  further  show  that  on,  to  wit,  the  said 

day  of  ,  the  day  of  issuing  said  execution,  they 

placed  for  collection  said  execution  in  the  hands  of  one  A.  F., 
a  deputy  sheriff,  qualified  to  collect,  serve,  and  return  said 

execution.     And  the  said  deputy  sheriff,  on,  to  wit,  the 

day  of ,  made  demand  upon  the  said  The  C.  D.  Co.  for 

the  payment  of  the  amount  due  to  the  plaintiffs;  and  for 
which  judgment  and  execution  had  been  rendered  and  issued 
in  said  suit  as  aforesaid. 

And  the  plaintiffs  show  that  the  said  The  C.  D.  Co.  did  neg- 
lect, for  the  space  of  thirty  days  after  said  demand  by  said 
deputy  sheriff,  holding  said  execution,  to  exhibit  to  said 
deputy  sheriff  real  or  personal  estate  belonging  to  said  cor- 
poration, subject  to  be  taken  on  execution,  sufficient  to  satisfy 
said  execution,  or  any  part  thereof  And  the  said  corpora- 
tion has  never  exhibited  to  said  deputy  sheriff  any  estate, 
real  or  personal,  from  which  he  might  satisfy  said  execution 
in  whole  or  in  part;  and  the  said  corporation  has  ever  since 
neglected  and  refused  to  pay  the  same,  or  any  part  thereof; 
and  the  said  deputy  sheriff  duly  returned  said  execution  into 

the  clerk's  office  of  said court,  at  S.,  in  said  county  of 

E.,  in  no  part  satisfied;  and  there  is  now  due  to  the  plaintiffs 
upon  said  judgment,  rendered  upon  said  notes,  the  said  sum 

of  $ ,  debt,  and  $ ,  costs  of  suit,  making  in  all'$ , 

with  interest  from  the  said day  of ,  the  day  of  the 

date  of  said  judgment. 

And  the  plaintiffs  further  show  that  at  the  time  when  said 

judgment  debt  was  contracted,  on,  to  wit,  the  day  of 

,  in  the  year ,  the  day  of  the  date  of  said  notes,  and 

during  the  time  from  and  after  the  said day  of ,  and 

before  the  capital  stock  of  said  corporation,  fixed  and  limited 
as  aforesaid,  was  fully  paid  in,  and  before  any  certificate  that 
said  capital  stock  had  been  paid  in  was  made  and  recorded, 
as  by  law  required,  and  from  and  after  the  said day  of 


BILLS   IN   SPECIAL   CASES.  59 

,  and  before  any  notice  of  the  assessments  voted  by  said 

corporation  and  actually  paid  in  had  been  given,  in  any  news- 
paper printed  in  said  county  of  E.,  or  printed  in  any  other 

county;  and  from  and  after  said day  of ,  and  before 

any  notice  of  the  amount  of  all  existing  debts  due  from  said 
corporation  had  been  given  in  any  such  newspaper  as  by  law 
required,  and  at  the  time  when  your  orators  commenced  their 
suit  aforesaid  against  the  said  The  C.  D.  Co.,  and  in  which 
judgment  aforesaid  was  rendered,  the  following  named  per- 
sons became,  and  were,  stockholders  in  the  said  The  C.  D.  Co., 
each  holding  stock  therein  of  the  amount  and  number  of 
shares  set  against  their  respective  names: 

T.  A.,  of  L.,  county  of  M.,  holder  of shares,  par  value 


E.  B.,  of  B.,  county  of  S.,  holder  of shares,  par  value 


Etc.,  etc. 

Wherefore  the  plaintiffs,  in  behalf  of  themselves  and  the 
aforesaid  other  creditors  of  the  said  The  C.  D.  Co.,  bring  the 
foregoing  bill  against  said  The  C.  D.  Co.,  and  the  aforesaid 
stockholders  therein,  and  pray  that  the  aforesaid  stockholders 
may  be  ordered  and  decreed  to  pay  to  the  plaintiifs  the 
amount  due  them  as  aforesaid,  as  fixed  and  determined  by 
the  judgment  aforesaid,  with  interest  from  the  date  of  said 
judgment,  and  to  pay  such  other  creditors  of  the  said  corpo- 
ration as  may  become  parties  to  this  bill  such  sums  as  may  be 
found  due  to  such  creditors ;  and  that  the  amount  of  the  debt 
due  as  aforesaid  to  the  plaintiffs  from  said  The  C.  D.  Co.,  and 
such  as  may  be  found  due  to  such  other  creditors  as  may  be- 
come parties  hereto,  may  be  assessed  upon  said  stockholders 
as  law  and  equity  may  require. 

And  that  the  plaintiffs  may  have  such  orders,  decrees,  and 
process  as  may  be  necessary  to  enforce  the  payment  of  such 
sums  as  may  be  assessed  upon  said  stockholders,  and  may 
have  such  further  and  other  relief  in  the  premises  as  the 
nature  and  circumstances  of  the  case  require,  and  as  shall 
seem  meet  unto  this  honorable  court. 


6o  IN   EQUITY. 

May  it  please  your  honors  to  grant  unto  the  plaintiffs  a  writ 
of  subpoena,  to  be  directed  to  the  said  The  C.  D.  Co.,  and 
the  said  stockholders  in  this  bill  named,  thereby  command- 
ing them  to  a  certain  day,  and  under  certain  penalties  therein 
expressed,  personally  to  appear  before  this  honorable  court, 
and  then  and  there  full,  true,  direct,  and  perfect  answers 
make  to  all  and  singular  the  premises;  and  further,  to  stand 
to,  perform,  and  abide  such  further  orders,  directions,  and  de- 
crees therein  as  to  this  honorable  court  shall  seem  meet. 

X.  &  X.,  Solicitors  and  of  Counsel.  A.  B. 

C.  B. 

\yeriJication.     See  No.  85.] 

(i)  Essex  Company  vs.  Lawrence  Machine  Shop,  10  Allen,  352. 


No.  88. 

For  a   Dissolution  of  a  Partnership. 

\Caption.i  address.,  and  introduction^ 

That  in  or  about  the  month  of ,  your  orator  entered 

into  an  agreement  with  C.  D.,  of,  etc.,  and  E.  F.,  of,  etc.,  the 
defendants  hereinafter  named,  to  form  a  partnership  with 
them,  in  the  business  of  auctioneers,  which  agreement  was 
reduced  to  writing,  and  signed  by  your  orator  and  the  said 
defendants,  and  was  in  the  words  and  figures,  or  to  the 
purport  and  effect,  following,  that  is  to  say:  \Stating  the 
samc\  as  in  and  by  the  said  agreement,  reference  being 
thereunto  had,  will  appear. 

And  your  orator  further  shows  that  the  said  copartnership 
business  was  entered  upon  and  has  ever  since  continued  to 
be  carried  on  ^by  your  orator  and  the  said  defendants,  in 
pursuance  of  and  under  the  aforesaid  agreement,  no  articles 
or  other  instrument  having  ever  been  prepared  and  executed 
between  them. 

And  your  orator  further  shows  unto  your  honors,  that 
having  much  reason  to  be  dissatisfied  with  the  conduct  of 


BILLS   IN   SPECIAL   CASES.  6l 

the  said  C.  D,,  and  being  desirous  therefore  to  dissolve  the 

said  partnership,  your  orator,  on  or   about  ,  caused  a 

notice  in, writing,  signed  by  your  orator,  to|_be  delivered  to 
the  said  C.  D.  and  E.  F.,  in  the  words  and  figures  of  the 
purport  and  effect  following,  that  is  to  say:  "In  con- 
formity," etc.,  etc.;  as  in  and  by  such  written  notice  now 
in  the  custody  or  power  of  the  said  defendants,  or  one  of 
them,  when  produced,  will  appear. 

And  your  orator  further  shows  that  the  said  C.  D.  has, 
from  time  to  time  since  the  commencement  of  the  said  part- 
nership, applied  to  his  own  use,  from  the  receipts  and  profits 
of  the  said  business,  very  large  sums  of  money,  greatly  ex- 
ceeding the  proportion  thereof  to  which  he  was  entitled, 
and  in  order  to  conceal  the  same  the  said  C.  D.,  who  has 
always  had  the  management  of  the  said  copartnership  books, 
has  never  once  balanced  the  said  books. 

And  your  orator  further  shows  that  having,  in  the  begin- 
ning of  the  year ,  discovered  that  the  said  C.  D.  was 

greatly  indebted  to  the  said  copartnership,  by  reason  of  his 
application  of  the  partnership  moneys  to  his  own  use,  your 
orator,  in  order  to  form  some  check  upon  the  conduct  of  the 
said  C.  D.,  requested  that  he  would  pay  all  copartnership 
moneys  which  he  received  into  their  bankers,  and  would 
draw  for  such  sums  as  he  had  occasion  for,  but  the  said  C.  D. 
has  wholly  disregarded  such  request,  and  has  continued  to 
apply  the  partnership  moneys  received  by  him  to  his  own 
use,  without  paying  the  same  into  the  bankers,  and  has  also 
taken  to  his  own  use  moneys  received  by  the  clerks,  and  has 
by  such  means  greatly  increased  his  debt  to  the  partnership, 
without  affording  to  your  orator  and  the  said  E.  F.  any  ade- 
quate means  of  ascertaining  the  true  state  of  his  accounts. 

And  your  orator  further  shows  that  he  has,  by  himself 
and  his  agents,  from  time  to  time  applied  to  the  said  C.  D., 
and  has  requested  him  to  come  to  a  full  and  fair  account  in 
respect  of  the  said  copartnership  transactions,  with  which 
just  and  reasonable  requests  your  orator  well  hoped  that  the 


62  IN    EQUITY. 

said  defendant  would  have  complied,  as  in  justice  and  equity 
he  ought  to  have  done.  But  now  so  it  is,  etc.  [see  No.  70], 
the  said  defendant  C.  D.  absolutely  refuses  so  to  do,  and  he 
at  times  pretends  that  he  has  not  received  and  applied  to  his 
own  use  more  than  his  due  proportion  of  the  partnership 
profits.  Whereas  your  orator  charges  the  contrary  thereof 
to  be  the  truth,  and  so  it  would  appear  if  the  said  defendant 
would  set  forth  a  full  and  true  account  of  all  and  every  his 
receipts  and  payments,  in  respect  of  the  said  partnership 
transactions,  and  of  the  gains  and  profits  which  have  been 
made  in  each  year  since  the  commencement  of  the  said 
partnership. 

And  your  orator  charges  that  the  said  C.  D.  has  in  fact 

received  the  sum  of (i)  dollars,  and  upwards,  beyond 

his  due  proportion  of  the  partnership  profits,  and  that  he  is 
nevertheless  proceeding  to  collect  in  the  partnership  debts 
and  moneys,  whereby  the  balance  due  from  him  will  be  in- 
creased, to  the  great  loss  and  injury  of  your  orator  and  the 
said  E.  F.  And  your  orator  charges  that  the  said  C.  D. 
ought  therefore  to  be  restrained  by  the  order  and  injunction 
of  this  honorable  court  from  collecting  and  receiving  any  of 
the  said  partnership  debts  and  moneys.  And  your  orator 
charges  that  the  said  E.  F.  refuses  to  join  your  orator  in  this 
suit.     All  which  actings,  etc.     [See  No.  73. J 

And  that  the  said  defendants  may  answer  the  premises; 
and  that  the  said  copartnership  may  be  declared  void,  and 
that  an  account  may  be  taken  of  all  and  every  the  said  co- 
partnership dealings  and  transactions  from  the  time  of  the 
commencement  thereof;  and  also  an  account  of  the  moneys 
received  and  paid  by  your  orator  and  the  said  defendants 
respectively  in  regard  thereto.  And  that  the  said  defend- 
ants may  be  decreed  to  pay  to  your  orator  what,  if  anything, 
shall,  upon  the  taking  of  the  said  accounts,  appear  to  be  due 
to  him,  your  orator  being  ready  and  willing,  and  hereby  offer- 
ing, to  pay  to  the  said  defendants,  or  either  of  them,  what,  if 
anything,  shall,  upon  the  taking  of  the  said  accounts,  appear 


BILLS    IN   SPECIAL   CASES.  03 

to  be  due  to  them,  or  either  of  them,  from  your  orator.  And 
that  in  the  meantime  the  said  defendant  C.  D.  may  be  re- 
strained by  the  order  and  injunction  of  this  honorable  court 
from  collecting  or  receiving  the  partnership  debts  or  other 
moneys.     [And  for  further  relief  7\    May  it  please,  etc. 

\Pray  subpoena  agaiftst  E.  F.^  and  subpoena  and  injunction 
against  C.  D^^ 

(i)  See  No.  86,  note  2. 


No.  89. 

For  an  Account  of  Partnership  Dealings  after  a  Dissolu- 
tion, and  for  a  Receiver   (i). 

[Caption^  address^  and  introduction.] 

That  on  or  about ,  your  orator  A.  B.  and  C.  D.,  of,  etc., 

the  defendant  hereinafter  named,  entered  into  copartnership 
together  as  attorneys  and  solicitors,  your  orator  engaging  to 

bring  into  the  business  the  sum  of dollars,  and  being  to 

receive  one  third  part  or  share  of  the  profits ;  and  the  said  C. 
D.  engaging  to  bring  into  the  business  the  sum  of dol- 
lars, and  being  to  receive  two  third  parts  or  shares  of  the 
said  profits. 

And  your  orator  further  shows  unto  your  honors  that  your 
orator  accordingly  brought  into  the  business  the  said  sum  of 

dollars,  and  that  the  said  copartnership  was  carried  on 

and  continued  until  the day  of ,  when  the  same  was 

dissolved  by  mutual  consent,  and  the  usual  advertisement  of 

such  dissolution  was  inserted  in  the ,  a  paper  published 

at ,  once  a  week  for  the  period  of weeks. 

And  your  orator  further  shows  that  the  said  copartnership 
business  was  carried  on  in  an  office  building  known  as  No. 
, street,  which  building,  at  the  time  of  the  dissolu- 
tion of  the  said  copartnership,  was  held  by  the  said  defend- 
ant and  your  orator  under  an  agreement  for  a  lease  for 


years  from ,  and  it  was  verbally  agreed  between  the  said 

defendant  and  your  orator  that  the  said  defendant  should  take 
to  himself  the  benefit  of  the  said  agreement,  accounting  to 


64  IN   EQUITY. 

your  orator  for  his  proportion  of  the  value  thereof,  and  in 
pursuance  of  such  agreement  the  said  defendant  has  ever  since 
continued,  and  now  is  in  possession  of  the  said  house  or 
building. 

And  your  orator  further  shows  unto  your  honors  that  no 
settlement  of  the  said  copartnership  accounts  has  ever  been 
made  between  your  orator  and  the  said  defendant,  and  that 
since  the  said  dissolution  your  orator  has  repeatedly  applied 
to  the  said  defendant  to  come  to  a  final  settlement  with  re- 
spect thereto.  And  your  orator  well  hoped  that  the  said  de- 
fendant would  have  complied  with  such,  your  orator's  reason- 
able requests,  as  in  justice  and  equity  he  ought  to  have  done. 
But  now  so  it  is,  etc.  [see  No.  71  J,  the  said  defendant  abso- 
lutely refuses  so  to  do.  And  your  orator  charges  that  the 
said  defendant  has  possessed  himself  of  the  said  copartner- 
ship books,  and  has  refused  to  permit  your  orator  to  inspect 
the  same,  and  has  also  refused  to  render  to  your  orator  any 
account  of  the  copartnership  moneys  received  by  him.  And 
your  orator  charges  that  he  has,  since  the  said  dissolution, 

paid  the  sum  of dollars  in  respect  of  the  copartnership 

debts. 

And  your  orator  further  charges  that  upon  a  true  and  just 
settlement  of  said  accounts  it  would  appear  that  a  consider- 
able balance  is  due  from  the  said  defendant  to  your  orator  in 
respect  of  their  said  copartnership  dealings,  which  said  sum 

or  balance  is  at  least  the  sum  of dollars ;  but  nevertheless 

the  said  defendant  is  proceeding  to  collect  in  the  said  copart- 
nership debts,  and  to  apply  the  same  to  his  own  use,  which 
the  said  defendant  is  enabled  to  do  by  means  of  his  possession 
of  the  books  of  account  as  aforesaid.  And  your  orator  charges 
that  the  said  defendant  ought  to  be  restrained  by  the  injunc- 
tion of  this  honorable  court  from  collecting  in  the  said  debts, 
and  that  some  proper  person  ought  to  be  appointed  by  this 
honorable  court  for  that  purpose.  All  which  actings,  etc. 
[See  No.  73]. 

And  that  an  account  may  be  taken  of  all  and  every  the  said 


BILLS   IN   SPECIAL   CASES.  65 

late  copartnership  dealings  and  transactions  until  the  time  of 
the  expiration  thereof,  and  that  the  said  C.  D.  may  be  direct- 
ed to  pay  to  your  orator  what,  if  anything,  shall  upon  such 
account  appear  to  be  due  from  him,  your  orator  being  ready 
and  willing,  and  hereby  offering,  to  pay  to  the  said  C.  D.  what, 
if  anything,  shall  appear  to  be  due  to  him  from  the  said  joint 
concern.  And  that  some  proper  person  may  be  appointed  to 
receive  and  collect  all  moneys  which  may  be  coming  to  the 
credit  of  the  said  late  copartnership.  And  that  the  said  C. 
D.  may  in  the  meantime  be  restrained  by  the  order  and  in- 
junction of  this  honorable  court  from  collecting  or  receiving 
any  of  the  debts  due  and  owing  thereto.  [And  for  further 
relief^     May  it  please,  etc. 

( I )  Equity  has  practically  exclusive  jurisdiction  in  proceedings  for 
an  account  and  settlement  of  partnership  affairs,  including  suits  for 
an  account  and  settlement  between  the  partners  themselves,  suits  for 
a  settlement  of  firm  affairs  between  the  survivors  and  the  personal  rep- 
resentatives of  a  deceased  partner,  and  suits  to  settle  the  affairs  of  an 
insolvent  firm,  and  to  adjust  the  demands  of  a  firm's  creditors,  and  the 
creditors  of  the  individual  partner.  The  equitable  jurisdiction  over 
partnerships  is  a  necessary  outgrowth  of  the  jurisdiction  over  account- 
ing, and  the  remedies  of  dissolution,  injunction,  and  receivership  are 
incidents  necessary  to  a  final  and  complete  relief  Pom.  Eq.  Jur.,  Sec. 
1421.  Equity  has  jurisdiction  of  matters  of  account  where  the  parties 
stand  in  a  fiduciary-  relation  to  eaoh  other,  and  the  account  is  so  com- 
plicated that  it  can  not  be  conveniently  taken  in  a  court  of  law. 
Pacific  R.  R.  of  Mo.  vs.  Atlantic  &  Pacific  R.  R.  Co.,  20  Fed.  Rep.,  277. 
Thus  complicated  accounts  preliminarj'  to  a  distribution  of  assets  or 
division  of  profits  are  of  equity  cognizance.  John  Crossley  Sons  vs. 
New  Orleans,  20  Fed.  Rep.,  352.  The  circuit  courts  have  jurisdiction 
where  the  amount  in  controversy  exceeds  $2,000  exclusive  of  costs, 
and  the  parties  are  citizens  of  different  states.  See  Act  of  March  3 
1887,  25  Stat,  at  L.,  433  ;  Desty's  Fed.  Prac,  Sec.  84. 


No.  90. 

Foreclosure  of  Mortgage  (i). 
[Caption  and  introduction^ 

That  heretofore,  to  wit,  on  the  day  01  ,  in  the 

year ,  the  said  C.  D.,  defendant,  being  irrdebted  unto  youi 


66  IN    EQUITY. 

orator  in  the  sum  of (2),  current  money,  and  intending 

to  secure  the  payment  thereof  unto  your  orator,  did,  by  his 
deed  of  that  date,  convey  unto  your  orator  and  his  heirs  cer- 
tain real  estate  lying  in  said  county,  and  particularly  described 
in  said  deed,  to  which  said  deed  there  is  a  condition  annexed 

that  it  be  void  on  payment  by  said to  your  orator  of  the 

aforesaid  sum  of  money,  with  interest  thereon  from ,  on 

or  before  the day  of ,  in  the  year ,  as  by  a  copy 

of  said  deed  filed  herewith  as  a  part  of  this  bill  wii.1  more  fully 
appear. 

And  your  orator  charges  that  no  part  of  the  aforesaid  sum 
of  money,  or  the  interest  accruing  thereon,  has  been  paid,  but 
the  same  is  still  owmg  to  him,  although  the  time  limited  for 
the  payment  thereof  by  the  condition  aforesaid  has  passed, 
and  payment  thereof  has  been  duly  demanded  of  the  said 

(3)- 

To  the  end,  therefore,  that  the  said may  answer  the 

several  matters  and  things  hereinbefore  stated,  as  fully  and 
particularly  as  if  they  were  herein  again  repeated,  and  he  was 
thereunto  specially  interrogated  (4);  and  that  the  premises 
aforesaid,  or  so  much  thereof  as  may  be  necessary,  may  be 
sold  for  payment  of  your  orator's  claim,  with  interest  as  afore- 
said; and  that  your  orator  may  have  such  further  or  other 
relief  as  his  case  may  require. 

May  it  please  your  honor  to  grant  unto  your  orator  the 

writ  oi  subpoena  against  the  said  C.  D.,  of ,  commanding 

him  to  appear  in  this  court  at  some  certain  day  to  be  therein 
named,  and  to  answer  the  premises,  and  abide  by  and  perform 
such  decree  as  may  be  passed  therein.  R.  X., 

Solicitor  for  Plaintiff. 

And  your  orator  admits  that  the  interest,  which  accrued 

due  prior  to  and  on  the ,  has  been  paid  to  him  by  the 

said ;  and  he  also  admits  the  receipt  of  the  further  sum 

of ,  which  was  paid  to  him  on  the for  further  inter- 
est, and  in  part  of  the  principal  debt  secured  by  said  mortgage. 
But  he  insists  that  the  residue  of  said  debt,  with  interest 


BILLS   IN    SPECIAL   CASES.  67 

accrued  thereon  since  the  last-mentioned  day,  is  still  due  and 
•owing  to  him. 

[Or  as  follows  :'\ 

And  your  orator  admits  that  sundry  payments  have  been 

made  to  him  by  the  said ,  on  account  of  said  mortgage, 

as  is  more  particularly  admitted  in  the  statement  marked 
Exhibit  B,  and  filed  as  part  of  this  bill;  but  by  said  statement 
it  appears,  and  so  he  insists,  there  is  yet  due  to  him  on  said 

mortgage  a  balance  of ,  besides  interest  thereon  from  the 

day  of . 

(i)  Equity  deals  primarily  and  almost  exclusively  with  the  mort- 
gagee. His  interest  in  the  mortgage  is  no  longer  an  estate  but  a  mere 
lien,  an  appendage  of  the  debt  personal  assets,  a  thing  in  action  sign- 
able  with  the  debt  but  incapable  of  being  separated  from  the  debt  and 
transferred  by  itself  He  has  no  legal  remedy  on  the  mortgage,  and 
■can  enforce  the  lien  against  the  land  only  in  equity,  as  this  is  the  pri- 
mary object  of  a  foreclosure  suit,  which  does  not  vest  the  title  in  the 
mortgagee,  although  it  extinguishes  that  of  the  mortgagor  by  transfer- 
ring it  to  the  purchaser  at  the  judicial  sale.  Pom.  Eq.  Jur.,  Sec.  1190. 
Milf.  &Tyl.  PI  &Pr,p.  511. 

(2)  Must  exceed  $2,000  to  give  circuit  court  jurisdiction.  25  Stat. 
at  1:„  433  ;  Dest3''s  Fed  Proc,  Sec.  84. 

(3)  If  payments  have  been  made  on  account,  they  should  be  admitted 
in  the  bill,  either  specially  or  by  referring  to  some  statement  or  account 
accompanying  the  bill  as  in  the  following  forms. 

(4)  A  defendant  is  bound,  upon  a  general  interrogatory  or  prayer,  to 
answer  all  the  material  averments  in  the  bill  fully  and  explicitly.  In 
cases,  therefore,  where  it  is  expected  there  will  be  no  controversy  about 
the  facts,  special  interrogatories  are  not  usually  inserted.  Where, 
however,  the  case  involves  many  circumstances  which  rest  in  the 
knowledge  of  a  suspected  defendant,  or  where,  from  any  cause,  a  full 
and  minute  discovery  is  desired  from  him,  the  interrogatories  should 
be  drawn  as  particular  and  searching  as  possible. 


68  IN  EQUITY. 

No.  91. 

To  have  Goods   Redelivered,  which  have  been  Deposited 
as  a  Security  for  Money  Lent. 

\^Captioii^  address^  and  introduction^ 

That  your  orator,  having  occasion  for  a  sum  of  money  for 
the  purpose  of  his  business,  made  application  to  C.  D.,  of,  etc., 
the  defendant  herein,  to  lend  him  the  same,  and  thereupon 

the  said  C.  D.,  on  or  about ,  advanced  and  lent  to  your 

orator  the  sum  of dollars  (i),  and  in  order  to  secure  the 

repayment  thereof  with  interest  your  orator  deposited  with 
the  said  defendant  \here  insert  a  description  of  the  goods\ 

which  were  of  the  value  of dollars,  and  upwards,  and  at 

the  same  time  executed  and  delivered  to  the  said  defendant  a 
bill  of  sale  of  the  said  goods  so  deposited  with  him ;  but  it 
was  not  meant  and  intended  thereby,  either  by  your  orator 
or  the  said  defendant,  that  the  said  transaction  should  amount 
to  an  absolute  sale  of  the  said  goods  to  the  said  defendant, 
but  it  was  expressly  agreed  between  your  orator  and  the  said 
defendant  that  your  orator  should,  nevertheless,  be  at  liberty 
to  redeem  the  same. 

And  your  orator  further  shows  that  being  desirous  to  re- 
deem the  said  goods,  he  has  repeatedly  applied  to  the  said  C. 

D.,  and  has  oflfered  to  repay  him  the  said  sum  of dollars, 

with  lawful  interest  thereon,  on  having  the  said  goods  rede- 
livered to  him,  with  which  just  and  reasonable  requests  your 
orator  hoped  that  the  said  C.  D.  would  have  complied,  as  in 
justice  and  equity  he  ought  to  have  done.  But  now  so  it  is, 
etc.     \See  No.  71.]     To  the  end,  etc.     \^See  No.  74.] 

And  that  the  defendant  may  answer  the  premises ;  and 
that  an  account  may  be  taken  of  what  is  due  to  the  said  de- 
fendant for  principal  and  interest  in  respect  of  the  said  loan 

of dollars,  and  that  upon  payment  thereof  by  your  ora- 

I  tor  the  said  defendant  may  be  decreed  to  deliver  over  to  your 
orator  the  said  goods  so  deposited  with  him  as  aforesaid. 
[And  for  further  relief]    May  it  please,  etc. 

(i)  See  No.  90,  note  2. 


BILLS   IN   SPECIAL   CASES.  69 

No.  92. 

To   Redeem  by   Purchaser  of  an   Equity   of  Redemption 
From  the  Assignee  in  Insolvency  of  the  Mortgagor. 

\Caption^  address^  and  introduction^ 

That  one  S.  H.,  of  N.,  in  said  county  of  W.,  and  state  of 
-,  on  or  about  the  day  of ,  was  seized  in  fee. 


simple  of,  or  otherwise  well  entitled  to,  certain  real  estate 
situated  in  said  N.,  particularly  described  in  certain  deeds  of 
conveyance  of  the  same  to  said  S.  H. — one  from  J.  F.  and  S. 

W.,  dated ,  and  one  from  J.  E.,  dated ,  recorded  in 

the  registry  of  deeds  for  the  county  of  W.,  book  242,  page 

32  ;  also  a  deed  from  J.  E.  to  said  S.  H.,  dated ,  recorded 

in  said  registry  of  deeds,  book  248,  page  457,  copies  of  which 
deeds  are  hereunto  annexed,  and  made  a  part  of  this  bill,  and 
marked . 

And  your  orator  further  shows  that  the  said  S.  H.,  on  or 

about  said  day  of  ,  made  a  conveyance  of  said 

premises,  by  way  of  mortgage,  to  one  H.  M.,  of  B.,  in  the 
county  of  S.,  and  commonwealth  of  Massachusetts,  to  secure 
the  repayment  of  a  sum  of  money,  with  interest  then  due 
from  the  said  S.  H.  to  the  said  H.  M. ;  and  that  subse- 
quently, and  on  or  about  the day  of ,  the  said  H. 

M.  transferred  and  assigned  all  his  interest  in  said  mort- 
gage deed,  and  in  the  premises  therein  described,  and  in  the 
debt  thereby  secured,  to  the  defendant.  Copies  of  said  mort- 
gage deed,  and  of  the  assignment  thereof,  are  hereunto  an- 
nexed, marked ,  and  made  a  part  of  this  bill. 

And  your  orator  further  shows  that  after  the  making  of  the 

said  transfer,  and  on  the day  of ,  the  said  defendant 

entered  into  the  possession  of  the  said  mortgaged  premises, 
or  into  the  receipt  of  the  rents  and  profits  thereof,  and  has 
ever  since  continued  in  such  possession  and  receipt. 

And  your  orator  further  shows  that  since  the  said  mort- 
gaged premises  have  been  in  the  possession  of  the  defendant, 
the  mills  and  principal  buildings  thereon  have  been  destroyed 


7©  IN    EQUITY. 

by  fire,  and  that  the  same  were  insured  by  the  said  S.  H.,. 
who  occupied  said  premises  under  lease  from  said  defendant 
for  the  benefit  of  said  defendant,  as  further  security  for  said 
mortgage  debt,  and  that  large  sums  have  been  paid  to  said 
defendant  on  said  policies,  and  that  they  still  hold  other  pol- 
icies upon  the  machinery  in  said  mills,  which  was  also  de- 
stroyed by  fire,  which  policies  have  been  assigned  to  said 
defendant  as  further  security  for,  and  in  payment  of,  said 
mortgaged  debt,  and  that  the  whole  amount  of  said  policies 
is  sufficient  to  cancel  the  greater  part,  if  not  the  whole,  of 
the  residue  of  said  debt,  which  had  not  otherwise  been  paid 
by  said  S.  H.,  and  that  if  a  just  account  were  taken  of  such 
payments,  and  of  the  sums  received,  or  to  be  received,  on 
said  policies,  which  are  now  due  and  payable,  and  of  said 
rents  and  profits  received  by  said  defendant,  the  whole  of 
said  mortgage  debt  would  be  found  to  be  justly  paid  and  dis- 
charged. 

And  your  orator  further  shows  that  on  the  day  of 

,  the  equity  of  redemption  which  the  said  S.  H.  retained 

and  owned  in  said  property  was  transferred  to  one  A.  W.  by 
assignments  in  the  course  of  proceedings  under  the  insolvent 
law  of  said  commonwealth  of  Massachusetts,  to  which  the 
said  S.  H.  was  a  party,  and  that  said  A.  W.,  as  such  assignee 
of  said  S.  H.,  by  his  deed  dated  the day  of ,  con- 
veyed said  equity  of  redemption  to  your  orator,  a  copy  of 
which  deed  is  hereunto  annexed,  marked . 

And  your  orator  charges  that  the  matter  in  dispute  herein, 
exceeds  the  sum  or  value  of  two  thousand  dollars  exclusive 
of  interest  and  costs  (i). 

And  your  orator  further  shows  that  being  the  owner  of 
said  right  of  redemption  in  said  property,  he  has  applied  ta 
said  defendant  and  requested  him  to  come  to  an  account  for 
the  rents  and  profits  of  the  said  premises  so  received  by 
him,  and  of  the  moneys  received  by  him  from  said  S. 
H.,  for  the  interest  and  principal  of  said  debt,  and  from  the 
said  policies  of  insurance,  and  to  deliver  up  the  possession  of 


BILLS   IN   SPECIAL   CASES.  71 

said  mortgaged  premises  to  him,  upon  being  paid  what,  if 
anything,  should  be  found  to  be  justly  due  to  him  upon  said 
account,  which  your  orator  is,  and  has  been,  ready  and  will- 
ing to  pay,  and  is  ready  to  bring  the  same  into  court,  if  any- 
thing shall  be  found  to  be  justly  due  to  said  defendant  upon 
the  proper  taking  of  said  account.  And  your  orator  well 
hoped  that  the  said  defendant  would  have  complied  with 
such  requests,  as  in  justice  and  equity  he  ought  to  have 
done  ;  but  the  said  defendant,  acting  in  concert  with  divers 
persons  unknown  to  your  orator,  refused  to  comply  there- 
with, and  insists  upon  holding  possession  of  said  estate,  and 
foreclosing  your  orator's  right  of  redemption  therein,  and  re- 
taining said  policies  and  the  amounts  received  thereon,  and 
said  rents  and  profits,  without  accounting  for  the  same. 

To  the  end,  therefore,  that  the  said  defendant  may,  if  he 
can,  show  why  your  orator  should  not  have  the  relief  hereby 
prayed,  and  the  said  defendant  may  answer  the  premises,  and 
that  an  account  may  be  taken  of  what,  if  anything,  is  due  to 
the  said  defendant  for  principal  and  interest  on  the  said  mort- 
gage, and  that  an  account  may  be  taken  of  the  rents  and 
profits  of  the  said  mortgagedjpremises,  which  have  been  pos- 
sessed or  received  by  the  said  defendant,  or  by  any  other 
person  or  persons,  by  his  order  or  for  his  use,  or  which, 
without  their  willful  default  or  neglect,  might  have  been  re- 
ceived ;  and  also  of  all  the  sums  that  may  have  been  paid  by 
said  S.  H.  or  others  towards  the  principal  and  interest  of  said 
mortgage  debt;  and  also  of  the  policies  of  insurance  and 
other  securities  which  the  said  defendant  has  received,  and 
of  the  sums  which  he  has  or  might  have  realized  therefrom, 
on  account  of  the  principal  and  interest  of  said  debt,  and  of 
the  value  of  such  policies  and  other  securities  now  in  his 
hands  on  account  of  said  debt,  which  he  has  not  sold  or 
turned  into  money ;  and  that  the  said  defendant  be  ordered 
to  apply  the  same  to  the  payment  of  said  debt ;  and  that  if 
it  shall  appear  that  said  rents  and  profits  and  the  payments 
and  the  proceeds  of  said  policies  and  other  securities  have 


7a  IN    EQUITY. 

been  and  are  more  than  sufficient  to  pay  the  principal  and 
interest  of  said  mortgage  debt,  that  the  residue  may  be  paid 
over  to  your  orator ;  and  that  your  orator  may  be  permitted 
to  redeem  the  said  premises,  your  orator  being  ready  and 
wilHng,  and  hereby  offering  to  pay  what,  if  anything,  shall 
appear  to  remain  due,  in  respect  to  the  principal  and  interest 
on  the  said  mortgage  ;  and  that  the  said  defendant  may  be 
decreed  to  deliver  up  possession  of  the  said  mortgaged  prem- 
ises to  your  orator,  or  to  such  person  as  he  shall  direct,  free 
from  all  encumbrances  made  by  him,  or  any  persons  claim- 
ing under  him,  and  may  deliver  to  your  orator  all  deeds  and 
writings  in  his  custody  or  power  relating  to  the  said  mort- 
gaged premises  ;  and  that  your  orator  may  have  such  further 
and  other  relief  in  the  premises  as  the  nature  of  this  case 
shall  require,  and  to  your  honors  shall  seem  meet. 

May  it  please  your  honors  to  grant  unto  your  orator  the 
subpoena  of  the  United  States  of  America,  to  be  directed  to 
the  said  C.  D.,  thereby  commanding  him,  at  a  certain  day, 
and  under  a  certain  pain  therein  to  be  specified,  personally 
to  be  and  appear  before  your  honors  in  this  honorable  court, 
and  then  and  there  to  answer  all  and  singular  the  premises, 
and  to  stand  to,  abide,  and  perform  such  order  and  decree 
thereon  as  to  your  honors  shall  seem  meet.  A.  B. 

X.  &  X.,  Solicitors. 

\yerifhcation^  as  in  No.  85.] 

(i)  See  Act  of  March  3,  1887,  25  Stat,  at  L.,  433 ;  Desty  Fed  Proc , 
Sec.  84. 


No.  93. 

By  Husband  of  Legatee  against  Executor  (i). 

[  Title ^  address^  and  introduction?^ 

That  W.  S.,  late  of,  etc.,  duly  made  and  published  his  last 

will  and  testament  in  writing,  bearing  date  on  or  about , 

and  thereby,  amongst  other  bequests,  gave  to  his  nephews  and 
nieces,  the  children  of  his  late  sister,  M.  A.,  the  sum  of 


BILLS    IN    SPECIAL    CASES.  73 

dollars  each,  to  be  paid  to  them  as  they  should  respectively 
attain  the  age  of  twenty-one  years,  and  appointed  C.  D.,  of, 
etc.,  the  defendant  hereinafter  named,  the  sole  executor  of 
his  said  will,  as  in  and  by  the  said  will,  or  the  probate  thereof 
when  produced  will  appear. 

And  your  orator  further  shows  unto  your  honors  that  the 
said  C.  D.,  soon  after  the  death  of  the  said  testator,  duly 
proved  the  said  will  in  the  proper  court,  and  hath  since  pos- 
sessed himself  of  the  personal  estate  and  effects  of  the  said 
testator  to  an  amount  much  more  than  sufficient  for  the  pay- 
ment of  his  just  debts,  funeral  and  testamentary  expenses 
and  legacies. 

And  your  orator  further  shows  that  after  the  death  of  the 
said  testator  your  orator  intermarried  with  A.  A.,  who  was 
the  niece  of  the  said  testator,  and  one  of  the  children  of  the 
said  M  A.,  m  the  said  will  named,  and  by  virtue  of  such 
intermarriage  your  orator  in  right  of  his  said  wife  became 

entitled  to  demand  and  receive  the  aforesaid  bequest  of 

(2)  dollars. 

And  your  orator  further  shows  that  your  orator's  said  wife 
lived  to  attain  her  age  of  twenty-one  years,  and  that  she  hath 
lately  departed  this  life,  and  that  neither  your  orator  nor  his 
said  wife  received  any  part  of  the  said  legacy. 

And  your  orator  further  shows  that  having  obtained  let- 
ters of  administration  upon  the  estate  of  his  said  wife,  he  has 
repeatedly  applied  to  the  said  C.  D.  for  the  payment  of  the 
said  legacy,  and  interest  thereon  from  the  time  of  his  said 
late  wife  attaining  her  age  of  twenty-one  years,  and  your 
orator  hoped  that  such  his  reasonable  requests  would  have 
been  complied  with,  as  in  justice  and  equity  they  ought  to 
have  been.  But  now  so  it  is,  may  it  please  your  honors, 
that  the  said  C.  D.,  combining,  etc.  [See  No.  71.]  To  the 
end,  therefore,  that,  etc.     [See  No.  74.] 

And  that  an  account  may  be  taken  of  what  is  due  and 
owing  to  your  orator  for  the  principal  and  interest  of  the  said 
legacy,  and  that  the  said  defendant  may  be  decreed  to  pay 


74  IN    EQUITY. 

the  same  to  your  orator.  And  if  the  said  defendant  shall  not 
admit  assets  of  the  said  testator  sufficient  to  answer  the  same, 
then  that  an -account  may  be  taken  of  the  estate  and  effects  of 
the  said  testator  which  have  been  possessed  or  received  by 
the  said  defendant  or  by  any  other  person  by  his  order  or  to 
his  use,  and  that  the  same  may  be  applied  in  a  due  course  of 
administration.  [And  for  further  relief]  May  it  please  your 
honors,  etc. 

[Verification^  as  in  No.  85.] 

( 1 )  To  recover  a  legacy  at  common  law  the  assent  of  the  executor 
was  necessary ;  and  the  jurisdiction  of  equity  over  legacies,  as  well  as 
over  administrations,  is  based  upon  the  trust  relation  existing  between 
an  executor  or  administrator  and  the  creditors,  legatees  and  distribu- 
tees ;  upon  the  necessity  of  a  discovery,  an  accounting  or  a  distributing 
of  assets  in  order  to  determine  the  rights  of  all  interested  parties ;  and 
the  fact  that  the  remedies  given  by  all  other  courts  are  inadequate, 
incomplete  and  uncertain.  Pom.  Eq.  Jur.,  Sec.  1 127.  In  this  country, 
probate  courts  have  generally  the  power  to  decree  the  payment  of  leg- 
acies at  the  suit  of  the  individual  legatees,  during  the  pendency  of  an 
administration  ;  and  in  such  proceedings  they  follow  the  settled  doc- 
trines of  equity.  Pom.  Eq.  Jur.,  Sec.  1129.  For  an  extensive  collation 
of  the  cases  illustrating  the  jurisdiction  of  probate  courts  and  courts 
of  equity  in  the  several  states  over  the  administration  of  estates, 
including  suits  for  the  payments  of  legacies,  see  Pom.  Eq.  Jur,,  Sec.  1 154, 
note  2. 

(2)  See  No.  90,  note  2. 

No.  94. 

On  Behalf  of  Infant  Legatees  (i). 

[Caption^  address^  and  introduction^ 

The  plaintiffs,  infants  under  the  age  of  twenty-one  years, 
by  J.  E.,  of,  etc.,  their  next  friend,  that  E.  H,,  the  elder, 
late  of,  etc,  but  now  deceased,  duly  made  and  published 
his  last  will  and  testament  in  writing  bearing  date,  etc., 
whereby  he  directed  that  W,  T,,  of,  etc.,  and  E,  B.,  of,  etc., 
the  defendants  hereinafter  named,  and  C.  G.,  of,  etc.,  who 
were  the  trustees  and  execiitors  in  his  said  will  named,  should, 


BILLS   IN  "SPECIAL   CASES.  75 

out  of  the  moneys  which  should  come  to  their  hands  in  man- 
ner therein  mentioned,  lay  out  and  invest  in  or  upon  govern- 
ment or  real  securities  at  interest  the  sum  of dollars,  upon 

trust,  etc.  [^The  trustees  were  to  pay  the  dividends  to  E.  //"., 
the  testator'' s  wife^  duri?ig  her  life ^  or  until  her  second  marriage^ 
and  after  her  decease  or  second  marriage^  the  whole  of  the 
dividends  to  be  applied  by  the  trustees  for  the  maintenance  and 
education  of  testator^ s  grandchildren^  the  plaintiffs^  to  whom  the 
principal  was  to  be  transferred^  to  the  grandsons  at  twenty- 
one^  and  to  the  granddaughters  at  twenty-one  or  marriage\y 
as  in  and  by,  etc.     And  the  plaintiffs  further  show  that  the 

said  testator  departed  this  life  in  or  about  the  month  of , 

without  having  in  any  manner  revoked  or  altered  the  said 
will,  except  by  a  codicil  bearing  date,  etc.,  which  did  not  re- 
late to  or  affect  the  said  trusts  of  the  said  sum  of dollars. 

And  the  plaintiffs  further  show  unto  your  honors  that  W. 
T.,  and  E.  B.,  and  the  said  C.  G.  duly  proved  the  said  testa- 
tor's will,  and  acted  in  the  trusts  thereof,  and  out  of  the 
moneys  which  came  to  their  hands  from  the  estate  and  effects 
of  the  said  testator,  in  or  about,  etc.,  appropriated  the  sum  of 

pounds  sterling,  in  satisfaction  of  the  aforesaid  legacy, 

in  the  purchase  of  the  sum  of pounds  sterling  three  per 

cent,  consolidated  bank  annuities,  and  the  said  sum  of  stock 
is  now  standing  in  their  names  in  the  books  of  the  governor 
and  company  of  the  Bank  of  England. 

And  the  plaintiffs  further  show  that  the  said  C.  G.  has  de- 
parted this  life,  and  that  the  said  E.  H.,  on  or  about,  etc., 
intermarried  with  and  is  now  the  wife  of  the  said  J.  E., 
whereupon  the  interest  of  the  said  E.  H.  in  the  said  sum  of 
pounds  sterling  three  per  cent,  consolidated  bank  annu- 
ities whplly  ceased. 

And  the  plaintiffs  further  show  that  the  said  defendants 
paid  to  the  said  J.  E.  and  E.,  his  wife,  the  year's  dividends 

which  became  due  on  the  said  sum  of  stock  on  the day 

of ,  as  well  for  the  interest  of  the  said  E.  E.  in  the  said 

stock  as  for  the  maintenance  and  education  of  the  plaintiffs 


76  IN    EQUITY. 

lip  to  that  time;  but  the  said  defendants  have  retained  in 
their  hands  the  subsequent  dividends  which  accrued  due  on 
the  said  stock,  and  have  made  no  payments  or  allowances 
thereon  for  the  maintenance  or  education  of  the  plaintiffs. 

And  the  plaintiffs  further  show  that  some  proper  person 
or  persons  ought  be  appointed  as  the  guardian  or  guardians 
of  the  plaintiffs,  with  suitable  allowances  for  their  main- 
tenance and  education  for  the  time  past  since  the  said 

day  of ,  and  for  the  time  to  come,  and  that  the  said  sum 

of  stock  ought  to  be  secured  in  this  honorable  court.  To  the 
end,  therefore,  etc.     [S^e  No.  74.] 

And  that  the  said  defendants  may  answer  the  premises; 
and  that  some  proper  person  or  persons  may  be  appointed 
the  guardian  or  guardians  of  the  plaintiffs,  with  suitable 
allowances  for  their  maintenance  and  education  for  the  time 

past  since  the  said day  of ,  and  for  the  time    to 

come,  and  that  the  |  said  defendants  may  account  for  the 
'  dividends  of  the  said  trust  stock  which  have  accrued  due 

since  the  said day  of ,  and  may  thereout  pay  the 

allowances  which  shall  be  made  for  the  maintenance  and  ed- 
ucation of  the  plaintiffs  since  the  said day  of ,  and 

may  pay  the  residue  thereof  into  this  honorable  court  for  the 
benefit  of  the  plaintiffs ;  and  may  transfer  also  the  said  sum 

of pounds  sterling  three  per  cent,  consolidated  bank 

annuities  into  the  name  of  the  accountant-general  of  this 
honorable  court,  to  be  there  secured  for  the  benefit  of  the 
plaintiffs  and  such  other  persons  as  may  eventually  be  in- 
terested therein.  \_And  for  further  relief^  May  it  please, 
etc. 

\_Verifcation,  as  in  No.  85.] 

(i)  A  specific  legatee,  filing  a  bill  for  a  general  account  of  the  admin- 
istration, is  not  confined  to  the  particular  errors  alleged  in  the  bill,  as 
he  might  be  if  he  were  surcharging  and  falsifying  a  stated  account. 
PuUiam  vs.  Pulliam,  10  Fed.  Rep.,  53.    See  also  No.  90,  note  2. 


BILLS   IN   SPECIAL   CASES.  77 

No.  95. 

Against  an  Executor  by  Legatees  and  the  Administrator 
of  a  Deceased  Legatee. 

\Caption^  and  address^  and  introduction^ 

Your  orators  and  oratrix,  administrator  of  the  goods 
and  chattels,  rights  and  credits  of  F.  K.,  late  of,  etc.,  de- 
ceased, H.  K.,  the  younger  of,  etc.,  and  S.  K.,  kn  infant  ' 
under  the  age  of  twenty-one  years,  to  wit,  about  the  age  of 
twenty  years,  by  the  said  H.  K.,  the  elder,  her  father  and 
next  friend,  show  unto  your  honors  that  J.  R.,  late  of,  etc., 
being  possessed  of,  or  well  entitled  unto,  a  considerable  per- 
sonal estate,  duly  made  and  published  his  last  will  and  tes- 
tament in  writing,  and  a  codicil  thereunto  annexed,  the  said 

will  bearing  date  on  or  about  the day  of ,  and  by 

his  said  will  amongst  other  things  gave  and  bequeathed  unto 

your  oratrix,  S.  K.,  the  sum  of  $ ,  to  be  paid  to  her  at  the 

age  of  twenty-one  years  or  day  of  marriage,  which  should 
first  happen.    And  the  said  testator  also  gave  and  bequeathed 

unto  your  orator  H.  K.,  the  younger,  the  sum  of  $ ,  to  be 

paid  to  him  on  his  attaining  his  age  of  twenty-one  years. 
And  the  said  testator,  after  giving  divers  other  legacies,  gave 
and  bequeathed  unto  R.  B.  the  defendant  herein,  and 
W.  R.  H.,  of,  etc.,  and  who  departed  this  life  in  the  lifetime 
of  the  said  testator,  the  rest  and  residue  of  his  estate  and 
effects  in  trust,  to  be  equally  divided  between  such  children 
of  his,  the  said  testator's  niece  M.  K.,  as  should  be  living  at 
the  time  of  his  decease,  and  thereby  appointed  the  said  R.  B. 
executor  thereof.  As  in  and  by  the  said  will,  or  the  probate 
thereof,  when  produced  to  this  honorable  court  will  appear. 

And  your  orators  and  oratrix  further  show  unto  your  hon- 
ors that  the  said  J.  R.  departed  this  life  on  or  about , 

without  revoking  or  altering  his  said  will,  save  by  the  said 
codicil,  and  without  revoking  or  altering  the  said  codicil, 
or  any  part  thereof;  whereupon  the  said  R.  B,,  the  executor 
in  the  said  will  named,  duly  proved  the  same  in  the  proper 
court,  and  undertook  the  executorship  thereof,  and  possessed 


78  IN    EQUITY. 

himself  of  the  personal  estate  and  effects  of  the  said  testator 
to  a  very  considerable  amount,  and  more  than  sufficient  to 
discharge  his  just  debts,  funeral  expenses,  and  legacies. 

And  your  orators  and  oratrix  further  show  unto  your 
honors  that  the  said  F.  K.,  in  the  said  testator's  will  named, 
and  your  orator  and  oratrix  H.  K.,  the  younger,  and  S.  K. 
were  the  only  children  of  the  said  M.  K.  in  the  said  will 
named  who  were  living  at  the  time  of  the  death  of  the  said 
testator,  and  your  orator  H.  K.,  the  younger,  became  enti- 
tled to  have  and  receive  his  said  legacy  of  $■ so  be- 
queathed to  him  as  aforesaid,  and  also  his  third  part  or  share 
of  the  residue  of  the  personal  estate  and  effects  of  the  said 
testator  after  payment  of  all  his  just  debts,  legacies,  and  fu- 
neral expenses  ;  and  your  oratrix  S.  K.,  is  entitled  to  have  her 

said  legacy  of  $ ,  and  also  her  third  part  or  share  of  the 

said  residue  secured  for  her  benefit  until  she  shall  attain  her 
age  of  twenty-one  years  or  day  of  marriage ;  and  your  orator 
H.  K.,  the  elder,  is  entitled,  as  such  administrator  of  the  said 
F.  K.,  as  aforesaid,  to  have  and  receive  the  remaining  third 
part  or  share  of  the  said  residue.  And  your  orators  and 
oratrix  further  show  unto  your  honors  that  the  said  F.  K. 

departed  this  life  on  or  about ,  intestate,  and  that  since 

his  death  your  orator,  the  said  H.  K.,  the  elder,  has  obtained 
letters  of  administration  of  the  personal  estate  and  effects  of 
the  said  F.  K.,  to  be  granted  to  him  by  the  proper  court. 

And  your  orators  and  oratrix  further  show  unto  your  hon- 
ors that  your  orator  H.  K.,  the  younger,  attained  the  age  of 

twenty-one  years  on  or  about ,  and   your   orators   and 

oratrix  being  so  entitled  as  aforesaid,  your  orators  have  made 
frequent  applications  to  the  said  R.  B.  to  pay  the  said  legacy 

of  $ ,  and  the  said  two-third  shares  of  the  said  residue ; 

and  your  oratrix  hath  also  applied  to  him,  the  said  R.  B.,  to  lay 

out  and  invest  her  said  legacy  of  $ ,  and  her  third  share 

of  the  said  residue,  upon  some  proper  security,  for  her  benefit, 
until  she  shall  attain  her  age  of  twenty-one  years  or  day  of 
marriage,  with  which  just  and  reasonable  requests  your  ora- 
tors and  oratrix  well  hoped  that  the  said  defendant  would 


BILLS    IN    SPECIAL   CASES.  79 

have  complied,  as  in  justice  and  equity  he  ought  to  have 
done^  But  now  so  it  is,  etc.,  he  absolutely  refuses  so  to  do, 
sometimes  pretending  that  the  said  testator  never  made  any 
such  will  as  is  hereinbefore  stated.  Whereas  your  orators 
and  oratrix  charge  the  contrary  thereof  to  be  true,  and  so  the 
said  defendant  will  at  other  times  admit.  But  then  again  he 
pretends  that  the  said  testator's  personal  estate  was  very 
small  and  inconsiderable,  and  not  nearly  sufficient  to  pay  and 
satisfy  his  just  debts  and  funeral  expenses.  Whereas  your 
orators  and  oratrix  expressly  charge  that  the  said  personal 
estate  and  effects  of  the  said  testator  were  much  more  than 
sufficient  to  discharge  the  said  testator's  just  debts,  and 
funeral  expenses,  and  legacies;  and  so  it  would  appear  if  the 
said  defendant  would  set  forth  a  full,  true,  and  particular 
account  of  all  and  every  the  personal  estate  and  effects  of  the 
said  testator  come  to  his  hands  or  use,  and  also  a  full,  true 
and  particular  account  of  the  manner  in  which  he  hath  dis- 
posed of  or  applied  the  same,  but  which  the  said  defendant 
refuses  to  do.     All  which  actings,  etc.     \_See  No.  73.] 

And  that  the  said  defendant  may  answer  the  premises ; 
and  that  an  account  may  be  taken  of  the  personal  estate  and 
effects  of  the  said  testator  come  to  the  hands  of  the  said  de- 
fendant, or  of  any  person  or  persons  by  his  order  or  for  his 
use,  and  also  of  the  said  testator's  funeral  expenses,  debts, 
and  legacies ;  and  that  the  same  may  be  applied  in  a  due 
course  of  administration  ;  and  that  the  said  defendant  may  be 
decreed  to  pay  to  your  said  orator  H.  K.,  the  younger,  his 

said  legacy  of  $ ;  and  that  the  clear  residue  of  the  said 

testator's  personal  estate  and  effects  may  be  ascertained,  and 
that  such  share  thereof  as  shall  appear  to  belong  and  be  due 
to  your  orators  respectively  may  be  paid  to  them  respectively, 

and  that  your  oratrix's  said  legacy  of  $ ,  and  also  such 

share  of  the  said  residue  as  she  shall  appear  to  be  entitled  to 
may  be  secured  for  her  benefit ;  and  that  for  those  purposes 
all  proper  directions  may  be  given.  \And  for  further  relief^ 
May  it  please,  etc. 

\yerificatioti^  as  in  No.  85.] 


8o  IN    EQUITY. 

No.  96. 

By  an  Executor  and  Trustee  Under  a  Will,  to  Carry  the 
Trusts  Thereof  into  Execution  (i). 

\Caption^  address^  and  introduction^ 

The  plaintiff,  A.  B.,  of,  etc.,  is  executor  of  the  will  and 
codicils  of  M.  S.,  late  of,  etc.,  deceased,  and  also  a  trustee, 
devisee,  and  legatee  named  in  the  said  will  and  codicils,  and 
that  the  said  M.S.,  at  the  several  times  of  making  her  will 
and  codicils  hereinafter  mentioned,  and  at  the  time  of  her 
death,  was  seized  or  entitled  in  fee-simple  of  or  to  divers 
messuages,  lands,  etc.,  of  considerable  yearly  value,  in  the 

several  counties  of  C.  and  D.,  in  the  state  of ,  and  being 

so  seized  or  entitled,  and  also  possessed  of  considerable  per- 
sonal estate,  the  said  M.  S.,  on  or  about ,  made  her  last 

will  and  testament  in  writing,  and  which  was  duly  signed 
and  attested,  and  published  by  her,  according  to  law,  and 
thereby,  after  giving  divers  pecuniary  and  specific  legacies, 
and  divers  annuities,  the  said  testatrix  gave  and  devised  unto 
the  plaintiff  all,  etc.     [Stating  the  substance  of  the  will  (2).] 

And  the  said  testatrix  afterwards,  on  or  about ,  made  a 

codicil  to  her  said  will,  which  was  duly  signed,  attested,  and 
published  according  to  law,  and  thereby  gave,  etc.,  and  in  all 
other  respects  she  thereby  confirmed  her  said  will  and  all 
other  codicils  by  her  theretofore  made;  as  by  said  will  and 
the  said  several  codicils  thereto,  or  the  probate  thereof,  to 
which  the  plaintiff  craves  leave  to  refer,  when  produced,  will 
appear. 

And  the  plaintifi"  further  shows  that   the  said    testatrix 

M.  S.  departed  this  life  on  or  about  ,  without  having 

revoked  or  altered  her  said  will  and  codicils,  save  as  such 
will  is  revoked  or  altered  by  the  said  codicils,  and  as  some 
of  the  said  codicils  have  been  revoked  or  altered  by  some  or 
one  of  such  subsequent  codicils ;  and  the  said  testatrix  at  her 
death  left  the  said  E.  G.,  formerly  E.  S.,  and  the  said  B.  S., 
her  cousins  and  co-heiresses  at  law.     And  the  plaintiff  being 


BILLS   IN   SPECIAL   CASES.  8l 

by  the  said  codicil  of  the  day  of ,  appointed  sole 

executor  of  the  said  will  and  codicils,  has  since  her  death 
duly  proved  the  said  will  and  codicils  in  the  proper  court, 
and  taken  upon  himself  the  execution  thereof. 

And  the  plaintiff  further  shows  that  the  said  testatrix,  at 
the  time  of  her  death,  was  possessed  of,  interested  in,  and 
entitled  unto  considerable  personal  estate  and  effects,  and, 
amongst  other  things,  she  was  entitled  to  an  eighth  share 
and  interest  in  a  certain  copartnership  trade  or  business  of  a 
tin-blower  and  tin-melter,  which  was  carried  on  by  the  testa- 
trix and  certain  other  persons  at ,  under  the  firm  of  S.  F. 

&  Co.,  in  which  the  testatrix  had  some  share  of  the  capital, 
and  which  was  a  profitable  business,  and  by  the  articles  of 
copartnership  under  which  the  said  business  was  carried  on, 
the  plaintiff,  as  the  said  testatrix's  personal  representative,  is 
now  entitled  to  be  concerned  in  such  share  of  the  said  busi- 
ness for  the  benefit  of  the  said  testatrix's  estate ;  and  she  was 
also  possessed  of  or  entitled  to  certain  leasehold  estates  held 
by  her  for  the  remainder  of  certain  long  terms,  etc. 

And  the  plaintiff  further  shows  that  he  has  possessed  him- 
self of  some  parts  of  the  testatrix's  personal  estate,  and  has 
discharged  her  funeral  expenses,  and  some  of  her  debts  and 
legacies,  and  the  plaintiff  has  also,  so  far  as  he  has  been  able, 
entered  into  possession  of  the  said  testatrix's  estates,  which 
she  was  seized  of  or  entitled  to  at  the  times  when  she  made 
her  said  will  and  codicils,  and  which  consisted  of,  etc.,  being 

all  together  of  the  yearly  value  of doll.irs  or  thereabouts, 

besides  the  said  mansion-house,  and  besides  the  premises, 

which,  by  the  said  codicil,  dated  on  the  day  of  , 

are  devised  to  the  plaintiff  for  his  own  use  and  benefit;  and 
the  plaintiff  is  desirous  of  applying  the  said  testatrix's  per- 
sonal estate  and  effects,  not  specially  bequeathed,  in  payment 
of  the  said  testatrix's  debts,  and  of  her  legacies  now  remain- 
ing unpaid,  and  of  the  annuities  bequeathed  by  the  said  will 
and  codicils,  so  far  as  the  same  will  extend,  and  of  paying 
the  remainder  thereof  out  of  the  rents  and  profits  of  th<e  said 


82  IN   EQUITY. 

real  estate,  and  of  applying  the  whole  of  the  rents  and  profits, 
according  to  the  directions  of  the  said  will  and  codicils,  as  in 
justice  and  equity  ought  to  be  the  case. 

But  now  so  it  is,  may  it  please  your  honors,  that  the  said 
C.  D.  and  E.,  his  wife,  B.  S.,  and  J.  S.,  in  concert  with  each 
other,  make  various  objections  to  the  plaintiff's  applying  the 
said  personal  estate,  and  the  rents  and  profits  of  the  said  real 
estate,  according  to  the  directions  of  the  said  will  and  codicil; 
and  the  said  defendants,  C.  D.  and  E.,  his  wife,  sometimes 
pretend,  that  by  virtue  of  the  said  testatrix's  will,  they  are 
entitled  to  the  residue  of  the  said  testatrix's  personal  estate, 
not  specifically  bequeathed,  including  all  her  household  es- 
tates, after  payment  of  all  her  funeral  expenses  and  debts, 
and  that  the  said  personal  estate  is  not  subject  to  the  pay- 
ment of  the  several  legacies  and  annuities  given  by  the  testa- 
trix's said  will  and  codicils,  but  is  exempt  therefrom,  and 
that  all  the  said  legacies  and  annuities  ought  to  be  paid  out 
of  the  rents  and  profits  of  the  said  testatrix's  real  estates. 

Whereas  the  plaintiff  charges  the  contrary  of  such  pre- 
tenses to  be  true,  and  that  the  said  personal  estate  is  appli- 
cable to  the  payment  of  all  the  said  testatrix's  legacies  and 
annuities,  after  satisfying  all  her  funeral  expenses  and  debts; 
and  the  said  C.  D.  and  E.,  his  wife,  are  desirous  that  the 
piaintifF,  as  the  personal  representative  of  the  said  testatrix, 
should,  by  means  of  the  said  testatrix's  share  of  the  capital 
employed  in  the  said  trade  or  business,  carry  on  the  said^ 
trade  or  business  for  the  benefit  of  them  and  of  the  said 
testatrix's  estate,  but  which  the  plaintiff  can  not  safely  do 
without  the  direction  and  indemnity  of  this  court ;  and  the 
said  C.  D.  alleges  that  he  is  not  of  ability  to  maintain  and 
educate  his  said  son,  J.  S.,  who  is  an  infant  of  the  age  of  ten 
years  or  thereabouts,  and  he  therefore  claims  to  have  some 
part  of  the  rents  and  profits  of  the  said  premises  paid  to  him, 
for  the  maintenance  and  education  of  the  said  J.  S. ;  and  the 
piaintifF,  under  the  circumstances  aforesaid,  is  unable  to  ad- 
minister the  said  personal  estate,  and  to  execute  the  trusts  of 


BILIvS    IN    SPECIAI<   CASES.  ^3 

the  said  real  estates,  without  the  directions  of  this  honorable 
court,  and  the  defendants  are  desirous  of  having  a  person 
appointed  by  this  court  to  receive  the  rents  and  profits  of  the 
said  real  estates,  devised  as  aforesaid  by  the  said  fifth  codicil, 
to  which  the  plaintiff  has  no  objection.  In  consideration 
whereof,  etc.     To  the  end,  therefore,  etc. 

And  that  the  trusts  of  said  will  and  codicil  may  be  per- 
formed and  carried  into  execution  by  and  under  the  direction 
of  this  court,  and  that  an  account  may  be  taken  of  the  said 
testatrix's  personal  estate  and  effects,  not  specifically  be- 
queathed, and  of  her  funeral  expenses  and  debts,  and  of  the 
legacies  and  annuities  bequeathed  by  the  said  will  and  codi- 
cils, the  plaintiff  being  ready  and  hereby  offering  to  account 
for  all  such  parts  of  the  said  personal  estate  as  have  been 
possessed  by  him,  and  that  the  said  personal  estate  may  be 
applied  in  payment  of  the  said  funeral  expenses,  debts,  and 
legacies  and  annuities  in  a  due  course  of  administration,  and 
that  the  clear  residue,  if  any,  of  the  said  personal  estate  may 
be  ascertained  and  paid  to  the  said  defendants,  C.  D.  and  E., 
his  wife,  in  her  right ;  and  in  case  it  shall  appear  that  the 
said  personal  estate,  not  specifically  bequeathed,  is  not  suf- 
ficient for  payment  of  all  the  said  funeral  expenses,  debts, 
legacies,  and  annuities,  or  that  any  parts  thereof  are  not  pay- 
able out  of  such  personal  estate,  then  that  proper  directions 
may  be  given  for  payment  of  such  deficiency,  or  of  such 
parts  thereof  as  are  not  payable  out  of  the  said  personal 
estate,  according  to  the  trusts  of  the  said  term  of  one  hun- 
dred years,  vested  in  the  plaintiff  as  aforesaid,  and  that  an 
account  may  be  taken  of  the  rents  and  profits  of  the  said  real 
estates,  comprised  in  the  said  term  received  by  or  come  to 
the  hands  of  the  plaintiff,  and  that  the  same  may  be  applied 
according  to  the  trusts  of  the  said  term  ;  and  that  proper  di- 
rections may  be  given  touching  the  effects  specifically  be- 
queathed by  the  said  will  and  codicils  as  heirlooms,  and  that 
proper  inventories  may  be  made  thereof ;  and  that  all  neces- 
sary directions  may  be  given  touching  the  application  of  a 


84'  IN   EQUITY. 

sufficient  part  of  the  rents  and  profits  of  the  said  real  estates 
to  the  maintenance  and  education  of  the  said  J.  S.,  in  case 
this  court  shall  be  of  opinion  that  any  allowance  ought  to  be 
made  for  that  purpose  ;  and  that  a  proper  person  may  be  ap- 
pointed by  this  honorable  court  to  receive  the  rents  and  prof- 
its of  the  said  real  estates  devised  as  aforesaid  by  the  fifth 
codicil.     [And further  relief.']     May  it  please,  etc. 

[Pray  subpoena  against  C.  D.  and  E.^  his  wife.,  B.  6".,  and 
J.  S.J  and  verify  as  in  No.  85.] 

(i)  In  pleading  a  trust  concerning  lands  it  need  not  be  alleged  that 
it  was  created  by  writing  ;  this  will  be  presumed  if  the  statute  requires 
a  writing  in  order  to  create  such  a  trust  as  the  bill  alleges.  Lamb  vs. 
Starr,  Deady  (U.  S.)  350.  Equity  will  enforce  all  lawful  trusts.  If  a 
trust  should  be  created  for  an  illegal  or  fraudulent  purpose,  equity 
will  not  enforce  it,  nor,  it  seems,  relieve  the  person  creating  it,  by  set- 
ting aside  the  conveyance.  When,  however,  a  trust  is  unlawful 
because  forbidden  by  statute,  the  whole  disposition  is  void.  Pom.  Eq. 
Jur.,  Sec.  987. 

(2)  As  to  jurisdiction  of  Federal  Court,  see  No.  86,  note  2. 


No.  97. 

To  Cancel  a  W^ritten  Instrument — a  Bill  of  Exchange  (i). 

[Caption J  address ^  and  introduction^] 

That  your  orator,  previously  to  the  month  of ,  had  fre- 
quently accepted  bills  of  exchange  for  the  accommodation  of 

Messrs.  D.  W.  and  J.  H.,  then  of .    And  that  some  time 

in  or  about  the  said  month  of they  applied  to  your  ora- 
tor to  assist  them  with  a  loan  of  his  acceptance  for  a  sum  of 
money,  and  they  severally  assured  your  orator  that  if  he 
would  accept  or  indorse  a  certain  bill  of  exchange  for  them, 
the  said  D.  W.  and  J.  H.,  they  could  procure  the  same  to  be 
discounted,  and  that  they,  or  one  of  them,  would  punctually 
provide  your  orator  with  the  money  to  take  up  the  same.  And 
your  orator,  relying  upon  such  promise,  agreed  to  accept  such 
bill  of  exchange  to  be  drawn  upon  him  by  the  said  D.  W., 


BILLS   IN   SPECIAL   CASES.  85 

and  J.  H.  accordingly  drew  upon  your  orator  a  certain  bill  of 

exchange  for  the  sum  of dollars  (2),  dated  the day 

of ,  and  payable  three  months  after  date,  which  your 

orator  thereupon  accepted. 

And  your  orator  further  shows  unto  your  honors  that  the 
said  bill  of  exchange  having  been  delivered  by  your  orator  to 
the  said  D.  W.  and  J.  H.,  without  any  consideration  whatso- 
ever had  or  received  by  your  orator  for  the  same,  the  said  D. 
W.  and  J.  H.  ought  either  to  have  provided  your  orator  with 
the  money  to  take  up  the  same  when  due,  as  they  had  prom- 
ised, or  else  have  redelivered  the  same  to  your  orator  to  be 
canceled;  and  your  orator  hoped  that  the  said  defendants 
would  have  provided  your  orator  with  the  money  to  take  up 
the  said  bill  of  exchange  when  the  same  became  due,  or  else 
would  have  redelivered  the  same  or  caused  the  same  to  have 
been  redelivered  to  your  orator  to  be  canceled,  and  that  no 
proceedings  would  have  been  had  against  your  orator  to 
recover  the  amount  thereof,  as  in  justice  and  equity  ought  to 
have  been  the  case. 

But  now  so  it  is,  may  it  please  your  honors,  that  the  said 
D.  W.  and  J.  H.,  combining  and  confederating  to  and  with  J. 
J.,  of,  etc.,  and  T.  O.,  of,  etc.,  and  with  divers  other  persons, 
etc.,  they,  the  said  confederates,  absolutely  refuse  to  deliver 
or  cause  or  procure  to  be  delivered  up  to  your  orator  the  said 
bill  of  exchange  to  be  canceled,  and  instead  thereof  the  said 
T.  O.  hath  got  into  his  possession  the  said  bill,  and  has 
lately  commenced  an  action  at  law  against  your  orator  to 
recover  the  amount  thereof,  the  said  confederates,  or  some  of 
them,  at  times  giving  out  and  pretending  that  the  said  bill 
of  exchange  was  made  and  given  by  your  orator  to  the  said 
D.  W.  and  J.  H.  for  a  full  valuable  consideration  or  consid- 
erations in  money. 

Whereas  your  orator  expressly  charges  the  contrary  thereof 
to  be  the  truth,  and  that  your  orator  never  had  or  received  any 
good  or  valuable  consideration  or  considerations  for  the  said 
bill  of  exchange,  and  that  the  same  was  delivered  by  him  to 


86  IN   EQUITY. 

the  said  D.  W.  and  J.  H.,  for  their  accommodation,  without 
receiving  any  consideration  or  considerations  for  the  same, 
and  upon  the  firm  reliance  that  they,  or  one  of  them,  would 
supply  your  orator  with  the  money  to  take  the  said  bill  up 
when  the  same  became  due  and  payable,  and  so  the  said  con- 
federates will  sometimes  admit ;  but  then  the  said  confederate 
J.  J.  pretends  that  he  discounted  the  said  bill  of  exchange 
for  full  valuable  considerations  in  money  or  otherwise  at  the 
time  when  the  said  bill  was  indorsed  to  him,  and  that  when  he 
paid  or  gave  the  full  valuable  consideration  or  considerations 
for  the  same,  he  had  not  notice  that  the  said  bill  had  been 
given  by  your  orator  in  the  manner  and  upon  the  express 
stipulations  hereinbefore  mentioned,  or  without  a  full  valu- 
able or  any  consideration  received  by  your  orator  for  the 
same,  and  that  therefore  your  orator  ought  to  pay  the  amount 
thereof  And  the  said  J.  J.  further  pretends  that  he  indorsed 
the  said  bill  of  exchange  to  the  said  T.  O.  for  good  and  valu- 
able considerations  before  he,  the  said  J.  J.,  received  any 
notice  from  your  orator,  and  before  your  orator  had  requested 
him  to  deliver  up  the  same.  Whereas  your  orator  charges 
the  contrary  of  all  such  pretenses  to  be  true,  and  particularly 
that  the  said  J.  J.  did  not  ever  give,  pay,  or  allow  to  the  said 
D.  W.  and  J.  H,,  or  either  of  them,  the  full  value  or  any  con- 
sideration whatever,  for  the  said  bill  of  exchange ;  and  that 
the  said  J.  J.  had  full  notice,  or  had  some  reason  to  know, 
believe,  or  suspect  that  the  said  bill  had  been  given  by  your 
orator  to  the  said  D.  W.  and  J.'  H.,  in  the  manner  and  upon 
the  express  stipulation  hereinbefore  mentioned,  and  without 
any  valuable  or  other  consideration  having  been  received  by 
your  orator  for  the  same. 

And  your  orator  further  charges  that  the  said  J.  J.  received 
the  said  bill  from  the  said  D.  W.  and  J.  H.,  to  get  the  same 
discounted  for  them,  and  with  an  express  undertaking  on  his 
part  to  deliver  over  the  money  he  obtained  upon  such  bill  to 
them,  the  said  D.  W.  and  J.  H.,  but  that  he  never  did  procure 
such  bill  to  be  discounted,  or  if  he  did  he  applied  the  moneys 


BILLS   IN   SPECIAL   CASES.  87 

he  obtained  upon  the  same  to  his  own  use,  and  never  paid  or 
delivered  over  any  part  thereof  to  the  said  D.  W.  and  J.  H., 
or  either  of  them. 

And  your  orator  further  charges  that  the  said  J.  J.  has 
received  notice  from  your  orator  and  the  said  D.  W.  and  J. 
H.,  of  the  terms  upon  which  the  said  bill  had  been  obtained 
by  the  said  D.  W.  and  J.  H.,  and  had  been  required  by  your 
orator  to  deliver  up  the  same  to  him  before  he,  the  said  J.  J., 
had  indorsed  the  said  bill  of  exchange  to  the  said  T.  O.,  and 
as  evidence  thereof  your  orator  expressly  charges  that  the 
said  J.  J.  had  the  said  bill  of  exchange  in  his  custody,  posses- 
sion, or  power  on  the day  of ,  last  past ;  and  that 

the  said  J.J.  did,  on  the day  of ,  last,  offer  the  paid 

bill  of  exchange  for  sale,  together  with  other  bills,  to  various 
persons. 

And  your  orator  further  charges  that  at  the  time  of  the  said 
bill  of  exchange  being  indorsed  or  delivered  to  the  said  T.  O., 
and  of  his  paying  or  giving  such  consideration  or  considera- 
tions (if  any  were  or  was  paid  by  him)  he  knew,  or  had  been 
infonned,  or  had  some  reason  to  know,  believe,  or  suspect 
that  your  orator  and  the  said  D.  W.  and  J.  H.  had  never  re- 
ceived the  full  or  any  consideration  for  the  said  bill  of  ex- 
change, and  he  well  knew  or  had  been  informed  that  your 
orator  had  accepted  the  said  bill  of  exchange  for  the  accom- 
modation of  the  said  D.  W.  and  J.  H.,  without  having  re- 
ceived any  consideration  for  the   same. 

And  your  orator  further  charges  that  the  said  T.  O.  is  a 
trustee  for  the  said  bill  of  exchange  for  the  said  confederate 
J.  J.,  or  for  some  other  person  or  persons  whose  names,  he 
refuses  to  discover,  and  that  he  holds  the  same  for  the  said 
confederate  J.  J.,  or  for  such  person  or  persons,  without  hav- 
ing given  any  consideration  or  considerations  for  the  same, 
and  that  if  he  receives  the  amount  of  the  said  bill  of  ex- 
change, or  any  part  thereof,  he  is  to  deliver  over  or  pay  the 
same  to  the  said  J.  J.,  or  such  other  person  or  persons,  and 
that  he  is  indemnified  by  the  said  J.  J.,  or  such  other  person 


88  IN    EQUITY. 

or  persons,  from  all  the  costs  attending  the  attempt  to  recover 
upon  the  said  bill  of  exchange  on  which  he  has  brought  his 
said  action  at  law.  And  notwithstanding  the  said  T.  O.  got 
the  said  bill  of  exchange  into  his  possession  without  giving 
any  consideration  for  the  same,  yet  he  threatens  and  intends 
to  proceed  in  his  action  at  law,  and  in  case  he  should  recover 
judgment  to  take  out  execution  against  your  orator  for  the 
amount  thereof. 

And  your  orator  further  charges  that  the  said  several  de- 
fendants, or  some,  or  one  of  them,  now  have  or  has  or  lately 
had  in  their  or  one  of  their  custody,  possession,  or  power, 
some  book  or  books  of  accounts,  letters,  documents,  or  writ- 
ings from  which  the  truth  of  the  several  matters  and  things 
aforesaid  would  appear.  And  so  it  would  appear  if  the  said 
defendants  would  set  forth  a  full,  true,  and  particular  account 
of  all  such  books  of  account,  letters,  documents,  and  writ- 
ings. All  which  actings,  etc.  [See  Nos.  70,  72,  and  74,  as  to 
the  interrogating,  the  stating  and  charging  parts].  And  that 
the  said  defendant  T.  O.  may  be  decreed  to  deliver  up,  and 
the  said  D.  W.  and  J.  H.  and  J.  J.  be  decreed  to  procure,  the 
said  bill  of  exchange  to  be  delivered  up  to  your  orator  to  be 
canceled,  as  having  been  given  by  your  orator  and  received 
by  the  said  D.  W.  and  J.  H.,  and  the  said  several  defendants, 
without  any  consideration.  And  that  the  said  defendants, 
respectively  may  be'  restrained  by  the  injunction  of  this  hon- 
orable court  from  proceeding  in  any  action  at  law  already 
commenced  against  your  orator  upon  the  said  bill  of  ex- 
change, and  from  commencing  any  other  proceedings  at  law 
against  your  orator  upon  the  said  bill  of  exchange.  And 
that  your  orator  may  have  such  further  and  other  relief  in 
the  premises  as  to  your  honor  shall  seem  meet,  and  the 
nature  of  this  case  may  require.  May  it  please,  etc.  \Pray 
subpoena  and  injunction  against  all  the  defendants.,  and  verify 
as  in  No.  85.] 

(i)  Mistake  of  law  is  no  ground  for  relief  if  it  consists  of  mere 
ignorance  of  law  on  part  of  complainant.     Allen  vs.  Elder,  2  Am.  St. 


BILLS   IN    SPECIAL   CASES.  89 

Rep.,  63.  But  it  is  otherwise  of  an  honest  mistake  of  law  on  part  of  both 
parties.     Allen  vs.  Elder,  2  Am.  St.  Rep.,  63. 

To  reform  written  instruments  on  ground  of  mistake  it  must  be 
clearly  established,  but  relief  will  not  be  withheld  because  there  is 
conflicting  testimony.     Hutchinson  vs.  Ainsworth,  2  Am.  St.  Rep.,  823. 

See  Fuller  vs.  Percival,  126  Mass.,  381,  where  a  firm  note  fraudulently 
given  by  a  partner  of  the  plaintiff  to  a  holder  with  notice  of  the  fraud 
was  canceled.  So  in  an  action  on  a  note  given  for  the  price  of  land, 
defendant  may  have  the  note  canceled  to  the  extent  of  the  damages 
sustained  by  him  by  reason  of  false  representations  in  the  sale.  Hosle- 
ton  vs.  Dickinson,  51  Iowa,  244. 

(2)  Must  exceed  $2,000  to  give  circuit  court  jurisdiction.  See  Act 
of  March  3,  1887,  as  amended  March,  1888  ;  25  Stat,  at  L.,  433. 


No.  98. 

To  Enforce  Specific  Performance  of  a  Contract  to  Make  a 
Policy  of  Insurance  (i). 

To  the  Judges  of  the  Circuit  Court  of  the  United  States  for 
the of : 

The  A.  B.  Insurance  Company,  a  corporation  duly  estab- 
lished by  the  laws  of  the  state  of ,  doing  business  at  the 

city  of ,  in  the  state  of ,  brings  this  its  bill  of  com- 
plaint against  the  C.  D.  Marine  Insurance  Company,  a  cor- 
poration duly  established  by  the  laws  of  the  commonwealth 

of  Massachusetts,  doing  business  at  the  city  of ,  in  said 

commonwealth,  and  inhabitant  of  said district  of . 

And  thereupon  your  orator  complains  and  says  that  in  and 

by  its  charter  and  by  the  laws  of  the  state  of ,  it  was,  on 

on  the day  of ,  and  ever  since  has  been,  authorized 

and  empowered  to  make  insurance,  among  other  things, 
against  loss  by  the  perils  of  the  seas  and  against  loss  by  fire ; 

that  your  orators  on  the  said day  of ,  underwrote 

and  caused  one  D.  . '  to  be  insured  for  whom  it  might  con- 
cern, payable  in  the  ev^  t  of  loss  to  the  said  D.  M.,  on  one 
eighth  of  the  good  ship  Republic,  the  said  ship  having  been 
valued  at dollars,  the  sum  of dollars,  for  the  term 


9©  IN    EQUITY. 

of  one  year  at  and  from  the day  of ,  at  noon,  until 

the day  of ,  at  noon,  against  loss  from  sundry  desig- 
nated risks,  and  especially  from  loss  from  the  perils  of  the 
seas  and  from  loss  by  fire,  as  will  more  fully  appear  from  a 
copy  hereunto  annexed  and  made  a  part  of  this  bill,  of  the 
policy  issued  by  your  orator  to  the  said  D.  M.,  and  marked 
"A." 

Your  orator  further  says  that  thereafter  the  aforesaid  in- 
surance so  made  by  your  orator  upon  the  Republic,  and  on 

the  night  of  the  day  of ,  the  said  ship  was  totally 

destroyed  and  lost  by  fire,  one  of  the  perils  insured  against ; 
that  your  orator  thereupon  became  liable  to  pay,  and  there- 
after such  loss  did  pay,  to  the  said  D.  M.,  the  full  sum  of 
dollars,  the  amount  so  as  aforesaid  by  your  orator  un- 
derwritten. 

Your  orator  further  says  that  after  it  had  insured  the  said 
D.  M.,  as  aforesaid,  and  before  the  loss  aforesaid  of  the  said 
ship,  and  before  the  commencement  of  the  fire  by  which  its 
destruction  was  produced,  your  orator  requested  and  author- 
ized C.  W.,  of aforesaid,  insurance  broker,  to  cause  and 

procure  your  orator  to  be  reinsured  in  the  sum  of dol- 
lars upon  the  said  Republic,  for  the  term  of  six  months, 
against  all  and  singular  the  risks  by  your  orator  theretofore 
assumed,  and  especially  against  loss  from  the  perils  of  the 
seas  and  from  fire. 

Your  orator  further  says  that  the  said  C.  W.,  as  the  agent  of 
your  orator,  in  that  behalf  duly  authorized  and  in  its  name 
and  behalf,  on  Saturday,  the day  of ,  made  appli- 
cation to  the  said  defendant  for  the  reinsurance  by  it  of  your 

orator  upon  the  said  Republic,  in  and  for  the  sum  of 

dollars,  for  the  term  of  six  months  from  the day  of 

aforesaid,  against  such  risks  as  your  orator  had  assumed,  and 
especially  against  loss  from  the  perils  of  the  seas  and  against 
loss  from  fire;  that  the  said  application  so  made  by  the  said 
C.  W.  was  made  at  the  office  and  usual  place  of  business  of 
the  said  C.  D.  Marine  Insurance  Company  in  the  city  of ; 


BII.LS   IN   SPECIAL   CASES.  91 

that  it  was  so  made  in  the  first  instance  to  the  secretary  of 
the  defendant,  and  immediately  thereafter,  and  on  the  day 
last  aforesaid,  to  G.  H.,  the  president  of  the  defendant,  who 
was  duly  authorized  to  receive  and  act  thereupon  for  the 
defendant. 

Your  orator  further  says  that  upon  the  making  of  the  said 
application,  the  said  G.  H.,  after  consulting  and  advising  with 
some  person  then  present,  whose  name  is  to  your  orator  un- 
known, replied  to  the  said  C.  W.  that  the  defendant  would 

reinsure  your  orator,  in  the  sum  of (2)  dollars,  upon  the 

said  Republic,  and  would  assume  the  risks  proposed  for  the 
term  of  one  year,  at  and  for  a  premium  of  six  percent  upon 
the  sum  to  be  underwritten ;  that  they  would  insure  against 
the  said  risks  for  the  term  of  six  months,  at  and  for  a  pre- 
mium of  three  and  one  half  of  one  percent  upon  the  sum 
to  be  insured. 

Your  orator  further  says  that  the  said  C.  W.,  immediately 
thereafter  the  said  application,  communicated  to  your  orator 
the  terms  upon  which  the  said  defendant  would  reinsure  your 
orator  upon  the  said  Republic, 

Your  orator  further  says  that  on  the day  of ,  your 

orator,  upon  being  advised  by  the  said  C.  W.  as  aforesaid, 
directed,  authorized,  and  requested  the  said  C.  W.,  in  the 
name  and  behalf  of  your  orator,  to  accept  the  terms  afore- 
said, for  six  months,  and  to  procure  for  your  orator  a  rein- 
surance, in  accordance  therewith,  from  the day  of 

aforesaid. 

Your  orator  further  says  that  the  said  C.  W.  as  agent,  and 

in  behalf  of  your  orator,  on  Monday,  the  day  of  the 

said  ,  at  or  about  eleven  o'clock  before  noon,  at  the 

place  of  business  of  the  said  defendants  in ,  and  before 

any  loss  or  damage  had  occurred  to  the  said  Republic,  noti- 
fied the  said  G.  H.  that  your  orator  had  accepted  the  propo- 
sition of  the  defendants  to  reinsure  your  orator  for  the  term 

of  six  months  from  the day  of  December  aforesaid,  at 

noon. 


92  IN   EQUITY. 

Your  orator  further  says  that  on  the  said day  of , 

and  before  any  loss  or  damage  had  occurred  to  said  ship,  the 
above-named  C.  W.,  in  behalf  of  your  orator,  embodied  in  a 
paper,  partly  printed  and    partly  written,  the  terms  of  the 

contract  of  reinsurance,  so,  as  aforesaid,  on  the day  of 

,  in  answer  to  the  aforesaid  application,  proposed  to  your 

orator  by  the  said  defendants,  and  so  as  aforesaid  accepted  on 
the  morning  of  the day  of . 

Your  orator  further  says  that  the  said  paper  was  examined, 
approved,  and  retained  by  the  said  G.  H.,  he  in  this  behalf 
acting  for  the  defendant,  and  by  him  was,  in  the  name  of  the 
defendant,  assented  to,  and  thereupon  a  contract  of  reinsur- 
ance by  and  between  the  defendant  and  your  orator  was 
complete  and  concluded,  upon  the  terms  in  said  paper  con- 
tained, by  force  whereof  the  defendant  became  and  was  liable 
and  agreed  to  and  with  your  orator  to  pay  to  it  the  sum  of 

dollars,  in  the  event  that  the  said  ship  Republic  should 

be  lost  or  damaged  within  six  months  from  and  after  noon  of 
the  said day  of ,  by  the  perils  of  the  seas  or  by  fire. 

Your  orator  further  says  that  the  said  G.  H.,  in  behalf  of 
the  defendant,  and  in  its  name  and  behalf,  agreed  with  the 
said  C.  W.,  he  acting  for  your  orator,  that  a  policy  should  be 
prepared  and  executed  by  the  said  defendanj:  to  your  orator, 
at  the  early  convenience  of  the  defendant,  and  delivered  to 
your  orator;  containing,  with  other  usual  and  accustomary 
clauses,  the  terms  of  the  contract  of  reinsurance,  so  as  afore- 
said concluded  by  and  between  your  orator  and  the  defend- 
ant, and  so  as  aforesaid  embodied  and  set  forth  in  the  paper 
aforesaid. 

Your  orator  further  says  that  the  said  C.  W.,  on  the  

day  of ,  aforesaid,  was  authorized,  ready,  and  willing,  in 

behalf  of  your  orator,  to  pay  to  the  defendant,  or  secure  to  its 
satisfaction,  at  its  election,  the  premium,  so  as  aforesaid  agreed 
upon,  on  the  said  reinsurance,  but  the  same  was  not  then 
paid,  because  the  defendant  was  accustomed  not  to  receive 
the  premiums  by  it  required  in  its  contracts  of  insurance 


BILLS   IN   SPECIAL   CASES.  93 

until  the  preparation  and  delivery  of  the  policies  by  them 
agreed  to  be  issued. 

Your  orator  further  says  that  the  said  C.  W.,  on  the  said 

day  of ,  immediately  upon  the  conclusion  of  the 

aforesaid  contract  of  reinsurance,  advised  your  orator  of  its 
completion. 

Your  orator  further  says  that  the  said  C.  W.,  on  Tuesday, 

the day  of ,  aforesaid,   notified  the  defendant  that 

the  said  ship  had  been  destroyed  by  fire  and  was  totally 
lost,  and  at  the  same  time  asked  E.  R.,  secretary  at  the  time 
of  the  defendant,  in  the  presence  and  hearing  of  the  said  G. 
H.,  at  the  office  of  the  said  defendant,  if  the  policy  had  been 
prepared  for  your  orator,  to  which  the  said  E.  R.,  in  the  hear- 
ing of  the  said  G.  H.,  said  no,  assigning  no  reason  for  the 
delay,  or  intimating  any  refusal  to  execute  such  policy. 

Your  orator  further  says  that  the  said  C.  W.,  on  Wednes- 
day, the day  of ,  called  a  second  time  at  the  office 

of  the  defendant,  and  asked  for  the  said  policy,  to  which  the 
said  G.  H.  replied,  he  was  in  doubt  whether  the  contract  was 
complete  and  obligatory,  as  it  was  made  on  a  day  regarded 
as  Christmas-day,  but  he,  the  said  G.  H.,  had  not  made  up  his 
mind  about  it,  and  did  not  want  to  talk  on  the  subject  then. 

Your  orator  further  says  that  one  F.  S.,  on  the day  of 

,  in  behalf  of  your  orator,  made  a  draft  upon  the  defend- 
ant for  the  sum  of (2)  dollars,  the  amount  of  said  reinsur- 
ance, less  the  premium,  payable  at  sight,  to  J.  S.,  your  orator's 

vice-president,  which  draft  was  thereafter,  on  the day  of 

,  presented  to  the  defendant,  which  they  refused   to  pay 

or  accept. 

Your  orator  further  says  that  the  said  C.  W.,  in  behalf  and 
in  the  name  of  your  orator,  in  that  behalf  duly  authorized,  on 

the day  of ,  at  the  office  of  the   defendant,  made 

demand  upon  the  aforesaid  G.  H.  for  the  execution  and  deliv-" 
ery  of  the  policy  so  as  aforesaid  by  the  said  defendant  there- 
tofore agreed  to  be  by  it  executed  and  to  your  orator  to  be 
delivered,  and  at  the  same  time  tendered  to  the  said  defendant 


94  IN   EQUITY. 

the  sum  of dollars  as  and  for  premium,  interest,  and  cost 

of  policy,  with  which  request  the  said  G.  H.,  in  the  name  of 
the  said  defendant  and  in  their  behalf,  refused  to  comply. 

Your  orator  further  says  that  it  has  applied  to  the  defendant 

for  a  copy  of  the  aforesaid  paper  so  left  with  it  on  the 

day  of ,  which  it  refused  to  furnish. 

And  your  orator  well  hoped  that  the  defendant  would  have 
complied  with  the  reasonable  requests  of  your  orator. 

To  the  end,  therefore,  that  the  said  defendant  may,  if  he 
can,  show  why  your  orator  should  not  have  the  relief  hereby 
prayed,  and  may,  according  to  the  best  and  utmost  of  its 
knowledge,  remembrance,  information,  and  belief,  full,  true, 
direct,  and  perfect  answer  make  to  such  of  the  several  interro- 
gations hereinafter  numbered  and  set  forth  as  by  the  note 
hereunder  written  it  is  required  to  answer,  that  is  to  say: 
\Here  set  forth  the  questions^ 

And  your  orator  prays  that  the  defendant  may  discover 
and  produce  the  original  paper  or  memorandum,  so  as  afore- 
said made  by  said  C.  W.,  and  dated day  of ,  which 

was  so  as  aforesaid  left  with  their  president  at  their  place 
of  business  on  the  aforesaid day  of . 

And  that  the  said  agreement  of  the  defendant  to  execute 
and  deliver  to  your  orator  a  policy  of  reinsurance,  according 
to  the  terms  of  the  aforesaid  paper,  and  in  accordance  with 
the  defendant's  contract  of  insurance  as  aforesaid,  may  be 
specifically  performed,  your  orator  hereby  undertaking  to 
perform  its  undertakings  in  the  premises. 

And  that  the  said  defendant  may  be  decreed  to  pay  to  your 

orator  the  sum  of dollars,  the  sum   so  as  aforesaid  by 

them  reinsured  to  your  orator,  with  interest  thereon.  And 
that  your  orator  shall  have  such  other  and  further  relief  as 
the  case  may  require  and  as  shall  seem  meet  to  the  court, 
and  as  shall  be  agreeable  to  equity  and  good  conscience. 

And  your  orator  prays  this  honorable  court  to  issue  a  writ 
of  subpoena  in  due  form  of  law  according  to  the  rules  of  this 
court,  to  be  directed  to  the  C.  D.  Marine  Insurance  Company, 


BILLS    IN    SPECIAL    CASES.  95 

a  corporation  by  the  law  of  Massachusetts,  at  ,  com- 
manding it  on  a  certain  day  and  under  a  certain  penalty  to 
be  and  appear  before  this  honorable  court,  and  to  stand  to, 
abide,  and  perform  such  order  and  decree  therein  as  to  this 
court  shall  seem  meet,  and  as  shall  be  agreeable  to  equity 
and  good  conscience. 

The  A.  B.  Insurance  Company, 

By  R.  X.,  its  Solicitor. 
S:  X.,  Counsel. 

SJ/erification^  as  in  No.  85.] 

(i)  Union  Mut.  Ins.  Co.  vs.  Commercial  Mut.  Mar.  Ins.  Co.,  2  Curt, 
524.  See  also  Taylor  vs.  The  Merchants  Fire  Ins.  Co.,  9  How.,  360 ; 
Herbert  vs.  Mut.  L.  Ins.  Co.,  12  Fed.  Rep.,  807  ;  Brugger  vs.  State  Inv. 
and  Ins.  Co.,  5  Saw.,  304 ;  S.  C.  8  Ins.  Law.  Jour.,  293. 

(2)  See  No.  86,  note  2. 


No.  99. 
To   Reform  a  Policy  of  Insurance  (i). 

[Caption^  Address^  and  Introduction^ 

And  thereupon  your  orator  complains  and  says  that  on  the 
day  of,  etc.,  he  was  the  sole  owner  of  a  ship  or  vessel  of 


the  value  of dollars,  called  the ,  then  lying  at  Q., 

in  the  province  of ,  and  bound  on  a  voyage  from  said  Q. 

to  a  port  of  discharge  in  said  U.K.,  on  board  which  said  ship 
there  had  been  and  was  then  laden  a  cargo  of  merchandise, 
the  property  of  various  persons  other  than  your  orator,  and 
which  said  merchandise  your  orator  has  agreed  should  be 
conveyed  in  said  ship,  from  said  Q.  to  said  port  of  discharge, 
for  a  certain  amount  of  hire,  or  freight,  to  be  paid  him  by  said 
parties  respectively  therefor,  amounting  in  the  whole  to  the 
sum  of dollars.  And  your  orator  being  desirous  to  pro- 
cure said  vessel  and  said  freight  to  be  insured  for  said  voyage, 
at  and  from  said  Q.  to  said  port  of  discharge,  namely,  the 

said  ship  for  the  sum  of dollars,  valued  at dollars, 

and  said  freight  for  the  sum  of dollars,  valued  at 


96  IN   EQUITY. 

dollars,  against  the  perils  of  the  seas  and  other  risks  usually- 
contained  in  marine  policies  of  insurance,  on  property  of 
such  description,  did,  in  writing,  by  letter,  bearing  date,  etc., 
request  his  agent,  one  J.  E.,of  said  Q.,  to  procure  the  same  to 
be  insured  on  account  of  your  orator,  and  to  have  the  poli- 
cies of  insurance  thereon  in  the  name  of  your  orator,  a  copy 
of  which  letter,  marked  "A,"  your  orator  hereto  annexes,  and 
prays  that  the  same  may  be  taken  as  a  part  of  this  his  bill 
of  complaint. 

And  your  orator  further  shows  that  said  J,  E.  afterwards, 

on  the day  of  the  same ,  in  compliance  with  the 

request  of   your   orator,    did,  through    one    H.  M.,  of , 

broker,  request  one  A.  M.,  of  the  city  of ,  and    state  of 

,  insurance  broker,  to  procure  said  insurance  upon  said 

ship  and  said  freight,  to  be  made  and  effected  at  some  proper 

and  solvent  insurance  company  in  said ,or  in ,in  said 

State  of ,  and  did  cause  to  be  transmitted  to  said  A.  M., 

insurance  broker  as  aforesaid,  a  copy  of  your  orator's  said 

letter,  bearing  date  the  said ;  and  thereupon  the  said  A. 

M.  being  unable  to  procure  said  insurance  to  be  made  and 
effected  for  a  reasonable  premium  in  said ,  did,  in  writ- 
ing, authorize  and  request  one  D.  R.,  of  said ,  commis- 
sion merchant,  to  cause  said  insurance  to  be  Imade  and  ef- 
fected by  some  proper  insurance  company  in  said ,which 

said  written  request  and  authority  so  given  by  said  A.  M.  to 
said  D.  R.  was  and  is  contained  in  two  certain  letters  written 
by  the  said  A.  M.  to  said  D.  R.,  one  of  which  letters  bears 
date,  etc.,  and  the  other  of  said  letters  bears  date,  etc.;  and 
your  orator  hereto  annexes  copies  of  both  said  letters,  marked 
respectively  "B"  and  "C,"  and  prays  that  the  same  may  be 
taken  as  parts  of  this  his  bill  of  complaint. 

And  your  orator  further  shows  that  in  said  letter  of  said  A. 
M.,  bearing  date,  the  etc.,  by  accident  and  mistake  the  said 
D.  R.,  was  directed  to  cause  said  ship  to  be  insured  for  the 

sum  of dollars,  to  be  valued  at  the  sum  of dollars, 

and  said  freight  to  be  insured  at  the  sum  of dollars,  and 


BILLS   IN   SPECIAL   CASES.  97 

to  be  valued  at  the  sum  of dollars ;  and  in  and  by  said 

letter  of  said  A.  M.,  bearing  date  the  said ,  said  mistake 

was  in  part  corrected,  and   said   D.R.  was  directed  to  insure 

said  ship   for   the    sum  of dollars,  and  to   insure  said 

freight  for  the  sum  of dollars ;  but  by  accident  and  mis- 
take the  sum  for  which  said  ship  and  said  freight  were  to  be 
valued  thereon  was  wholly  omitted. 

And  your  orator  further  shows  that  the  said  D.  R.,  after 

receiving  said  letters  on  the ,  did  apply  to  the  said  C.  M. 

Marine  Insurance  Company  to  make  insurance  upon  said  ship 
and  freight  for  your  orators,  according  to  the  order  and  request 
of  the  said  A.  M.,  and  did  then  and  there  exhibit  both  said 
letters  of  said  A.  M.  to  said  insurance  company,  with  the 
intent  to  inform  said  insurance  company  as  well  of  the  rela- 
tion of  said  A.  M.  as  agent  of  the  owners  of  the  said  ship  as 
to  enable  them  to  determine  the  character  of  the  risk  to  be 
insured,  and  said  insurance  company  did  afterwards  read  and 
examine  said  letters,  and  on  the  same  day  did  agree  with  the 
said  D.  R.,  acting  as  agent  of  your  orator,  to  insure  the  said 
ship  on  the  voyage  aforesaid,  at  and  from  said   Q.,  for   the 

sum  of dollars,  to  be  valued  at  the  sum  of dollars, 

and  to  insure  the  said  freight  of  said  ship  on  said  voyage  for 
the  sum  of dollars,  to  be  valued  at  the  sum  of dol- 
lars, and  to   receive   as  premium  therefor  the  sum  of 

dollars. 

And  your  orator  further  shows  that  thereafterwards,  on  the, 

etc., ,  the  said   insurance  company,  with  the  intent  and 

design  to  carry  into  effect  said  agreement,  did  cause  to  be 
made  a  writing,  or  policy,  of  insurance,  signed  by  the  pres- 
ident and  secretary,  bearing  date,  etc.,  a  copy  of  which  is  here- 
to annexed,  and  marked  "D,"  which  your  orator  prays  may 
be  taken  as  part  of  this  his  bill  of  complaint,  and  did  deliver 
said  policy  to  said  D.  R.,  the  agent  of  your  orator,  as  afore- 
said, and  did  receive  from  said  D.  R.,the  agent  of  your  orator, 

said  premium  of dollars,  which  sum  was  thereafterwards 

by  your  orator  repaid  to  said  D.  R. 


98  IN    EQUITY. 

Aud  your  orator  further  shows  that  although,  when  said 
insurance  company  had  so  agreed  to  insure  said  ship  and 
freight  for  the  amounts  aforesaid,  it  was  well  known  to  said 
insurance  company  that  said  A.  M.  was  merely  the  agent  of 
the  owner  of  said  ship  and  of  the  person  entitled  to,  and 
solely  interested  in,. said  freight ;  and  that  he,  said  A.  M.,  had 
no  insurable  or  other  interest  whatever  in  either  said  ship  or 
said  freight,  and  that  said  A.  M.  was,  by  profession  and  pur- 
suit, a  mere  insurance  broker,  and  that  he  was  acting  as  the 
agent  of  the  person  who  owned  said  ship  and  who  was  solely 
interested  in  said  freight,  and  yet  by  accident  and  mistake 
said  insurance  on  said  ship  and  said  freight  was,  by  the  terms 
of  said  policy,  etc.,  declared  to  be  on  account  of  said  A.  M., 
and  without  adding  thereto  the  word  agent  or  any  other  term 
indicating  that  he,  the  said  A.  M.,  was  insured  as  said  agent 
of  the  party  owning  said  ship  and  interested  in  said  freight, 
and  without  the  usual  clause,  commonly  inserted  in  such  poli- 
cies, that  said  insurance  was  effected  for  whom  it  might, 
concern. 

And  your  orator  further  shows  that  said  insurance  company 
knew,  and  was  distinctly  informed  by  said  D.  R.  by  said 
letter  of  said  A.  M.  to  said  D.  R.,  bearing  date,  etc.,  and  sub- 
mitted to  and  read  by  them  as  aforesaid,  that  said  A.  M.  was 
the  mere  agent  of  and  broker  for  the  owner  of  said  ship,  and 
had  no  interest  whatever  in  said  ship  or  freight,  except  so 
far  as  he  would  be  entitled  to  the  usual  commission  of  a 
broker  for  procuring  said  insurance  ;  and  the  said  insurance 
company  did  agree,  consent,  and  understand  at  the  time  said 
agreement  to  insure  said  ship  and  freight  was  made  with  said 
D,  R.,  and  before  said  policy  so  made  to  carry  said  agree- 
ment into  effect  was  written  and  signed,  that  said  insurance 
was  to  be  made  for  the  benefit  and  on  account  of  the  owner 
of  said  ship  ;  and  that  said  A.  M.  was  not  the  owner  of  said 
ship  nor  interested  therein  or  in  said  freight,  and  that  by 
mere  inadvertence,  accident,  and  mistake  in  writing  said 
policy   of  insurance  it  was  omitted  to  be  inserted  in  said 


BILLS   IN   SPECIAL   CASES.  99 

policy  that  said  insurance  was  made  on  account  of  said  A.  M. 
as  agent  and  for  whom  it  might  concern. 

And  your  orator  further  shows  unto  your  honors  that  said 
policy  was  received  by  the  said  D.  R.  and  transmitted  to  the 
said  J.  E.,  the  agent  of  your  orator,  and  by  him  kept  and 
retained  in  ignorance  that  by  the  terms  and  legal  effect 
thereof  no  other  interest  was  insured  thereby  save  that  of  the 
said  A.  M.,  and  in  the  full  understanding  as  well  by  said  A. 
M.,  said  D,  R.,  and  said  J.  E.,  that  the  interest  of  your  orator 
in  said  ship  and  freight,  to  the  extent  of  the  sums  named  in 
said  policy,  was  thereby  insured  and  protected,  in  accord- 
ance with  your  orator's  directions  contained  in  his  said  letter 
to  said  J.  E.,  bearing  date  the  said,  etc. 

And  your  orator  further  shows,  etc.  [Here  state  the  loss  of^ 
etc.] 

And  your  orator  submits  to  your  honors  that,  by  reason  of 
the  premises,  he  is  justly  and  equitably  entitled  to  have  said 
mistake  so  made  in  drawing  said  policy  of  insurance  cor- 
rected, and  said  policy  reformed  by  inserting  therein  that 
said  insurance  was  made  on  account  of  A.  M.  as  agent,  or  for 
whom  it  may  concern  ;  and  that  the  sums  so  insured  by  said 
company  on  said  ship  and  said  freight  be  paid  to  him  ac- 
cordingly. 

And  your  orator  further  shows  unto  your  honors  that  pre- 
viously to  this  suit  being  commenced,  on  the day  of , 

and  since,  he  applied  to  and  requested,  and  caused  applica- 
tion to  be  made  to,  said  insurance  company,  to  act  towards 
your  orator  in  such  a  way  as  is  equitable  and  just,  and  to 
reform  said  policy  as  aforesaid,  and  to  adjust  and  pay  to  him 
the  sums  so  insured  by  them  on  said  ship  and  said  freight, 
and  so  lost  to  your  orator  as  aforesaid  by  reason  of  the  perils 
insured  against  in  said  policy,  and  exhibited  to  said  insurance 
company  the  usual  and  proper  proofs  of  said  agency  of  said 
A.  M.,  and  of  said  loss,  and  of  his  sole  ownership  of  said 
ship  and  sole  interest  in  said  freight  at  the  time  of  said 
agreement  so  made  with  the  agent  of  your  orator  by  said 


lOO  IN    EQUITY. 

insurance  company  to  insure  the  same  as  aforesaid,  and  your 
orator  well  hoped  that  said  insurance  company  would  have 
yielded  to  his  said  applications  and  paid  to  him  the  sums  so 
insured  by  them  and  lost  by  him  as  aforesaid.  [^Pray  relief 
and  process^ 

(i)  See  No.  86,  note  2. 


No.  100. 

To  Enjoin  the  Obstruction  of  a  River  (i). 

The  Circuit  Court  of  the  United  States, 
District  of . 


The  United  States  of  America,    PlaintilBfs,    ] 

vs.  \  In  Equity.  ' 

The  C.  &  D.  Railroad  Company,  Defendant,  j 

To  the  Honorable  Judges  of  the  Circuit  Court  for  the 

District  of . 

The  United  States  of  America,  by  their  attorney,  J.  H.,  and 
under  the  direction  of  the  attorney-general  of  the  United 
States,  the  plaintiflfs,  respectfully  show  unto  your  honors 
that  the  defendant,  the  C.  &  D.  Railroad  Company,  is  a  cor- 
poration, duly  incorporated  under   the  laws  of  the  state  of 

,  and  is  a  citizen  and  inhabitant  of  the district  of 

,  and  having  its  chief  office  of  business  in  the  city  of , 

in  said  state,  where  it  is  carrying  on  the  business  of  a  rail- 
road company,  transporting  freight  and  passengers,  is  unlaw- 
fully creating  an  obstruction,  not  affirmatively  authorized  by 

law,  to  the  navigable  capacity  of  the  river,  a  public 

highway  of  commerce  and  intercourse  between  the  states, 
and  a  river  in  respect  to  which  the  United  States  have  juris- 
diction. 

Your  orators  further  say  that  the  said  corporation,  defend- 
ant, is  in  possession  of,  occupies  and  uses  a  certain  lot  and 
tract  of  land  along  the  river  bank,  between  the  \city  water 

works]  and  the  lower  side  of street,  in  the  city  of , 

county  of ,  and  state  of ,  and  which  said  lot  of  land 


BII^LS   IN   SPECIAL   CASES.  lOI 

runs  south  to  the  edge  and  low- water  mark  of  the river, 

and  which  said  lot,  with  the  buildings  thereon,  consisting  of 
tracks,  warehouses,  and  other  superstructures,  is  and  are  used 
for  the  business  of  said  railroad  company,  and  which  said 
land  and  premises  form  the  bank  and  shore  of  the  waters  of 
the river. 

And  your  orators  further  show  that  the  said  corporation  is 
casting,  emptying,  unloading,  and  suffering  and  causing  to  be 
cast,  emptied  and  unloaded,  large  quantities  of  slate,  gravel,  • 
rubbish,  slags,  earth,  cinders,  waste,  refuse  and  other  mate- 
rials into  the  said river,  a  navigable  river  of  the  United 

States,  tending  to  impede  and  obstruct  the  navigation  and 
the  navigability  of  said  waters  of  the  United  States  ;  and  the 
said  defendant  is  depositing  and  causing  to  be  deposited,  and 
suffering  to  be  deposited  and  placed,  large  quantities  of  slate, 
stone,  gravel,  earth,  rubbish,  wreck,  refuse,  waste  and  other 

materials  on  the  shore  and  bank  of  said river  south  of 

and  upon  the  land  occupied  as  the  premises  of  the  defendant, 
where  the  same  is  liable  to  be  washed  into  the  navigable 

waters  of  said river  by  the  ordinary  floods  and  rises  of 

said  river,  to  the  permanent  obstruction  and  detriment  of  its 
navigation,  and  contrary  to  the  provisions  of  Section  6  of  an 
Act  entitled  "  An  Act  making  appropriation  for  the  construc- 
tion, repair  and  preservation  of  certain  public  works  on 
rivers  and  harbors,  and  for  other  purposes,"  approved  Sep- 
tember 19,  1890  (2),  and  to  the  irreparable  injury,  obstruction 
and  detriment  of  the  said  river,  for  which  your  orators  have 
no  adequate  remedy  at  law. 

And  this  casting,  emptying  and  unloading  of  which  your 
orators  complain,  is  not  for  the  purpose  of  being  used  in  the 
building,  repairing  or  keeping  in  repair  any  quay,  pier,  wharf, 
weir,  bridge,  building  or  other  work  lawfully  erected  or  to  be 
erected  on  the  banks  on  sides  of  said  navigable  river,  or 
to  the  casting  out,  unlading  or  depositing  of  any  material 
excavated  for  the  improvement  of  said  river,  or  the  deposit- 
ing of  any  substance  above  mentioned  under  a  permit  from 


I02  IN    EQUITY. 

the  secretary  of  war,  in  any  place  designated  by  him  where 
navigation  would  not  be  obstructed,  as  allowed  and  permitted 
as  set  forth  in  the  proviso  to  section  6  of  the  act  aforesaid. 
Your  orators  therefore  pray  that  a  writ  of  injunction  may 
issue  to  the  said  C.  &  D.  Railroad  Company,  perpetually  en- 
joining it  from  making  said  obstruction,  and  creating  and 
continuing  to  create  said  unlawful  obstruction  to  the  naviga- 
bility of  the  said  waters  of  the  river,  and  perpetually 

•  enjoining  it  from  filling  and  dumping  said  material  along  the 
river  bank  between  the  [a'/jv   water-works]   and  the  lower 

side  of street,  in  said  city,  except  so  far  as  may  be 

necessary  to  protect  their  railroad  tracks  from  the  wash  of 
the  river;  and  this  last-named  filling  not  to  exceed  a  width 
of  six  feet  beyond  the  outer  rail  of  the  tracks  of  said  rail- 
road as  now  laid  down ;  and  if  it  shall  be  found  by  this  hon- 
orable court  that  the  defendant  is  creating  and  making  the 
said  unlawful  obstruction  to  the   navigability  of  the   said 

waters  of  the  river,  as  set  forth  in  this  bill,  that  the 

defendant  be  also  ordered  to  remove  the  same ;  and  that  a 
writ  of  subpoena  may  issue  to  said  C.  &  D.  Railroad  Com- 
pany requiring  it  to  answer,  not  under  oath,  this  bill  of  com- 
plaint and  the  various  matters  therein  set  forth ;  and  that  a 
temporary  restraining  order  may  issue  enjoining  it  from  fur- 
ther dumping  or  depositing  the  material  as  aforesaid,  as 
specifically  set  forth  in  this  paragraph,  until  the  final  hear- 
ing of  this  cause,  and  for  other  and  further  relief  as  may  be 
proper  in  the  premises.  J-  H., 

United  States  Attorney  for  the 

district  of 

The  United  States  of  America, 
District  of ,  ss. 

Now  comes  J.  H.,  attorney  for  the  United  States,  and  says 
that  he  has  read  the  foregoing  bill  of  complaint,  and  believes 
the  facts  stated  therein  to  be  true.  J.  H. 

Sworn  to  before  me  and  subscribed  in  my  presence  this 

day  of ,  1894.  J.  N., 

[Seal.]  United  States  Commissioner 

for  said  district. 


BILLS   IN   SPECIAL   CASES.  I03 

(i)  Taken  from  the  record  in  U.  S.  vs.  The  Louisville  &  Nashville 
Railroad  Company,  in  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  Ohio. 

(2)  See  26  Stat,  at  L.,  426. 


No.  101. 

To  Cancel  Decree  of  Naturalization. 

[Caption  and  address^ 

The  United  States,  by  W.  H.,  their  attorney-general,  and 

J.H.,  the  United  States  attorney  for  the district  of , 

bring  this  their  bill  against  C.  D.,  a  resident  of  the  city  of 

,  in  the  district  aforesaid,  and  an  alien  and  subject  of 

the of . 


And  thereupon  your  orators  complain  and  say  that  on  or 

about  the day  of ,  18 — ,  the  said  defendant,  who 

was  and  now  is  an  alien  and  subject  of  the of ,  ap- 
peared in  the court,  it  then  being  a  court  of  record  of 

the  state  of ,  purporting  to  have  common-law  jurisdiction, 

and  a  seal  and  clerk,  and  at  a  term  and  session  thereof  then 

being  holden  in  the  city  of ,  within  the  district  aforesaid, 

and  applied  to  be  admitted  a  citizen  of  the  United  States. 

That  thereupon  said  court,  on  the  day  and  year  last  afore- 
said, entered  up  a  decree  purporting  to  admit  said  defendant 
to  be  and  become  a  citizen  of  the  United  States,  under  the 
pro\  isioii  of  section  2167  of  the  Revised  Statutes  of  the  United 
States,  in  and  by  which  decree  it  is  recited,  among  other 
things,  that  said  defendant  had  proven  to  the  satisfaction  of 
the  court,  by  the  testimony  of  one  S.  T.,  that  he  had  arrived 
in  the  United  States  a  minor  under  the  age  of  eighteen  years; 
that  he  had  resided  in  the  United  States  at  least  five  years, 
including  the  three  years  of  his  minority,  and  in  the  state  of 
at  least  one  year  immediately  preceding  his  said  ap- 
plication, and  that  for  three  years  prior  thereto  it  had  been 
bona  fide  his  intention  to  become  a  citizen  of  the  United  States. 
That  thereupon  a  certain  copy  of  said  decree  as  aforesaid  was 


I04  IN    EQUITY. 

delivered  to  said  defendant,  who  ever  since  has  claimed,  by- 
virtue  of  said  pretended  decree,  and  not  otherwise,  to  be  a 
duly  naturalized  citizen  of  the  United  States,  and  now  claims 
that  by  virtue  of  said  proceedings  he  is  such  citizen,  and  as 
such  is  entitled  to  all  the  rights,  privileges  and  franchises  of 
a  citizen  of  the  United  States,  and  claims  to  be  entitled  to  the 
protection  of  the  United  States  as  a  citizen  thereof. 

Your  orators  state  and  charge  that  it  is  not  true  that  the 
said  defendant  was  a  minor  under  the  age  of  eighteen  years 
when  he  arrived  in  the  United  States;  it  is  not,  nor  was  it 
then,  true  that  he  had  resided  in  the  United  States  for  three 
years  next  preceding  his  arriving  at  the  age  of  twenty-one 
years ;  it  is  not,  nor  was  it  then,  true  that  he  had  resided  in 
the  United  States  at  least  five  years,  including  the  three  years 
of  his  minority ;  it  is  not,  nor  was  it  then,  true  that  it  had  been 
bona  fide  his  intention,  for  two  years  next  preceding  the  date 
of  his  application,  to  become  a  citizen  of  the  United  States. 

And  your  orators  further  state  and  charge  that  the  decree 
aforesaid  was  obtained  by  defendant  from  the  court  aforesaid 
by  fraud  and  perjury,  willfully  and  knowingly  committed  at 
and  before  the  court  aforesaid,  which  fraud  and  perjury  was 
and  is  that  the  defendant  introduced  witnesses  for  the  purpose 
of  obtaining  the  said  decree,  who,  having  been  duly  sworn, 
willfully  testified  falsely  in  substance  and  to  the  effect  follow- 
ing, to  wit,  that  said  defendant  was  under  the  age  of  eighteen 
years  when  he  arrived  in  the  United  States,  and  that  he  had 
resided  in  the  United  States  three  years  next  preceding  his 
arrival  at  the  age  of  twenty-one  years,  whereas,  as  the  said 
defendant  and  said  witnesses  well  knew,  such  were  not  the  facts, 
nor  were  any  of  such  facts  known  to  any  of  said  witnesses. 

And  your  orators  charge  that  the  facts  aforesaid,  as  to  the 
qualifications  of  defendant,  were  not  proven  or  made  to  appear 
to  the  satisfaction  of  the  court  aforesaid  by  the  testimony  of 
any  witness  who  had  any  knowledge  thereof,  nor  in  any  law- 
ful manner,  nor  by  any  competent  or  lawful  testimony  what- 
soever, and  that  said  decree  was  based  upon  the  fraudulent 


BILLS  IN  SPECIAL  CASES.  IO5 

and  false  testimony  aforesaid,  and  said  court  was  induced  to 
render  it  by  and  through  mistake  as  to  the  true  facts,  as  well 
as  by  the  fraud  and  perjury  aforesaid,  and  the  imposition 
practiced  upon  it  by  said  defendant. 

And  your  orators  further  charge  and  represent  that  said 
defenda!nt  did  then  and  there,  on  the  hearing  of  his  said  ap- 
plication, make  and  cause  to  be  made,  in,  to  and  before  said 
last-named  court,  with  the  intent  to  procure  and  to  aid  in 
procuring  his  naturalization  as  aforesaid,  and  the  issue  of  the 
certificate  of  citizenship  to  him,  a  false  statement,  which  was 
and  is  that  the  said  defendant,  at  the  time  he  arrived  in  the 
United  States,  was  under  the  age  of  eighteen  years,  and  had 
resided  in  the  United  States  three  years  next  preceding  his 
arrival  at  the  age  of  twenty-one  years ;  whereas,  in  truth  and 
in  fact,  as  the  said  defendant  then  and  there  well  knew,  he 
was  not,  at  the  time  he  arrived  in  the  United  States,  under  the 
age  of  eighteen  years,  and  had  not  resided  in  the  United 
States  three  years  next  preceding  his  arrival  at  the  age  of 
twenty-one  years. 

Your  orators  further  charge  and  represent  that  for  the 
purpose  of  obtaining  said  decree  said  defendant  did  then  and 
there,  on  the  hearing  of  said  application,  commit  a  fraud  upon 
the  plaintiffs  and  said  court  by  then  and  there  intentionally 
and  knowingly  concealing  from  said  last-named  court  the 
facts  that  at  the  time  he  arrived  in  the  United  States  he  was 
over  the  age  of  eighteen  years,  and  had  not  resided  therein 
three  years  next  preceding  his  arrival  at  the  age  of  twenty- 
one  years,  and  by  then  and  there  intentionally  and  knowingly 
failing  and  refusing  to  make  known  to  said  last-named  court 
the  facts  that  at  the  time  he  arrived  in  the  United  States  he 
was  over  the  age  of  eighteen  years,  and  had  not  resided  therein 
three  years  next  preceding  his  arrival  at  the  age  of  twenty-one 
years,  and  by  then  and  there  falsely  pretending  in,  to,  and 
before  said  last-named  court  that  at  the  time  he  arrived  in  the 
United  States  he  was  under  the  age  of  eighteen  years,  and 
had  resided  therein  three  years  next  preceding  his  arrival  at 


I06  IN   EQUITY. 

the  age  of  twenty-one  years,  and  was  then  and  there  entitled 
to  be  admitted  to  become  a  citizen  of  the  United  States. 

Your  orators  further  represent  that  the  United  States  had 
no  notice  of  the  said  application  of  said  defendant  nor  of  the 
hearing  thereof,  and  were  not  represented  thereat,  and  had  no 
opportunity  to  contest  the  false  and  fraudulent  claim  of  the 
defendant,  but  that  the  proceeding  was  entirely  ex  parte 
and  not  contested,  by  reason  whereof  the  real  facts  in  the 
matter  were  not  presented  to  nor  were  they  before  the  said 
last-named  court  on  said  hearing,  and  said  court  was  imposed 
upon  and  induced  by  said  false  testimony  offered  by  defendant, 
and  mistake  as  to  the  real  facts,  and  the  aforesaid  false  and 
fraudulent  pretenses  and  claims  made  by  him  and  on  his  be- 
half, and  suppression  of  the  facts  as  aforesaid  and  by  mistake 
of  the  facts,  to  then  and  there  enter  the  decree  aforesaid 
admitting  said  defendant  to  be  a  citizen  of  the  United  States 
under  said  application,  the  said  defendant  not  being  then  and 
there  entitled  to  be  admitted  to  become  such  citizen  either 
under  such  application  or  otherwise. 

And  your  orators  also  charge  that  at  the  time  when  he 
obtained  said  decree  the  defendant  had  not,  as  he  well  knew, 
at  least  two  years  prior  to  his  pretended  admission,  made  the 
declaration  required  by  the  first  subdivision  of  section  2165 
of  the  Revised  Statutes  of  the  United  States,  nor  did  he  come 
within  any  of  the  exceptions  or  other  provisions  of  the  statutes 
of  the  United  States  entitling  him  to  said  decree.  To  the 
contrary,  your  orators  charge  that  said  defendant  procured 
said  decree,  contriving  and  conniving  to  work  a  fraud  upon 
the  United  States  and  upon  the  court  by  which  the  decree 
was  granted,  and  that  defendant  accepted  it,  and  still  claims 
the  benefits  thereof,  well  knowing  that  he  was  not  then  and 
is  not  now  entitled  to  it,  or  to  the  benefits  thereof,  and  that  the 
court  had  been  imposed  upon,  and  had  been  induced  to  issue 
it  through  mistake  of  the  true  facts  as  aforesaid,  and  through 
the  fraud  and  imposition  practiced  upon  it  as  aforesaid. 

And  your   orators  further  charge  that  the  said  pretended 


BILLS   IN   SPECIAL   CASES.  IO7 

decree  of  naturalization  was  procured,  as  defendant  well  knew 
at  the  time  he  procured  and  accepted  the  same,  without  any 
compliance  with  the  laws  of  the  United  States,  and  in  fraud 
thereof,  and  your  orators  aver  and  charge  that  the  existence 
of  the  fraudulent  decree  on  its  face  entitled  the  defendant  to 
exercise  the  rights  of  a  citizen  of  the  United  States,  and  to 
claim  their  protection,  whereto  he  is  not  entitled,  and  if  the 
same  remains  uncanceled  and  in  force,  it  can  be  used  in  fraud 
of  the  United  States,  and  of  persons  relying  thereon  as  a  valid 
decree. 

Your  orators  therefore  pray  that  the  said  defendant  may  be 
compelled  to  answer  all  and  singular  the  premises  in  this  bill 
(but  not  under  oath,  answer  under  oath  hereby  expressly 
waived).  And  your  orators  pray  that  the  decree  of  naturaliza- 
tion aforesaid  be  declared  null  and  void;  that  the  said  de- 
fendant be  required  to  surrender  up  the  certified  copy  thereof 
delivered  to  him;  that  he  be  forever  restrained  and  enjoined 
from  setting  up  or  claiming  any  rights,  privileges,  benefits  or 
advantages  whatsoever  under  said  decree ;  and  that  your  orators 
shall  have,  generally,  such  other  and  further  relief  as  the 
circumstances  and  nature  of  the  case  may  require. 

Therefore,  that  your  honors  will  grant  unto  your  orators  the 
writ  of  subpoena  issuing  out  of  and  under  the  seal  of  this  court, 
to  be  directed  to  said  C.  D.,  commanding  him  by  a  certain  day 
to  appear  before  your  honors,  in  the  court  aforesaid,  and  then 
and  there  answer  the  premises  and  abide  the  order  and  decree 
of  the  court.  W.  H., 

Attorney-General. 
.       .  J.  H., 

U.  S.  Atty. Dist.  of . 

R.  X., 
of  Counsel  for  Plaintiff. 


I08  IN  EQUITY. 

No.  102. 

To  Enforce  a  Lien  against  a  Distillery. 

Circuit  Court  (i)  of  the  United  States  in  and  for 

the District  of . 

The  United  States  of  America,  Plaintiffs,  ^ 

vs.  >  In  Equity. 

C.  D.,  Defendant.  J 

To  the  Honorable  Judges  of  the  Circuit  Court  of  the  United 
States  for  the District  of . 

The  plaintiffs,  the  United  States  of  America,  respectfully 
show  unto  your  honors  that  C.  D.  was  engaged  in  the  busi- 
ness of  a  distiller  in  the  year  of ,  in county,  in  the 

collection  district  of  the  state  of ;  and  as  such  dis- 
tiller made  returns  to  the  assessor  of  said  district,  of  spirits 

by  him  produced  during  the  month  of ,  1894.     And  the 

assessor  of  said  district,  proceeding  to  inquire  and  determine 
if  said  C.  D.  had  accounted  for  all  the  spirits  produced  by 

him  during  said  month  of ,  1894,  under  and  by  virtue 

of  section  20,  of  the  act  of  Congress  approved  July  20,  1868, 
ascertained  that  the  quantity  of  spirits  returned  by  said  C.  D., 
as  produced  by  him  during  said  month,  was  less  than  eighty 
per  centum  of  the  producing  capacity  of  his  said  distillery  as 
estimated  under  the  provisions  of  the  act  aforesaid.  And 
thereupon  the  said  assessor  made  an  assessment  upon  said 

C.  D.  for  the  deficiency,  amounting  to dollars,  which 

was  thereupon  placed  in  the  hands  of  the  collector  of  said 
district,  and  payment  thereof  demanded  of  the  said  C.  D., 
yet  the  said  assessment  still  remains  due  and  unpaid,  and  is 
a  lien  upon  the  distillery  and  the  lot  of  land  upon  which  the 
same  was  situated,  to  wit:  \Here  set  forth  description  of  the 
property  in  full^ 

The  plaintiffs  further  show  that  G.  B.,  E.  P.,  and  S.  G. 
have  a  mortgage  lien  upon  the  said  premises,  but  on  the 

day  of ,  18 — ,  they  gave  their  consent  in  writing, 

duly  acknowledged,  that  the  lien  of  the  United  States  for 


BILLS    IN    SPECIAL    CASES,  IO9 

taxes  and  penalties  should  have  priority  of  their  said  mort- 
gage. 

Wherefore  plaintiflfs  pray  that  due  process  issue,  requiring- 
said  C.  D.  and  A.  D.,  his  wife,  G.  B.,  E.  P.,  and  S.  G.  to  ap- 
pear and  answer  this  bill  of  complaint;  that  the  said  distil- 
lery and  lot  of  land  above  described  may  be  sold  to  satisfy 
said  lien,  and  that  plaintiflf  may  have  such  other  and  further 
relief  as  may  be  just  and  equitable.  J-  H,, 

United  States  Attorney,  Solicitor  for  Plaintiffs. 

(i)  The  district  court  also  has  jurisdiction.  See  R.  S.,  Sees.  563 
and  3207. 


No.  103. 

Of  Interpleader  (i).  (Old  English  Form.)  Bill  by  a  Les- 
see Against  Different  Persons,  Claiming  the  Rents  by- 
Different  Titles,  to  have  them   Interplead. 

\Caption  and  address?^ 

Humbly  complaining,  showeth  unto  your  lordship  your 
orator  A.  B,,  of,  etc.,  that  the  mayor,  citizens,  and  commonalty 
of  the  city  of  C,  being  seized  as  of  fee,  of  and  in  the  perpetual 
curacy  of  D.,  by  indenture,  etc.  \State  the  demise  from  the 
corporation  to  the  Reverend  E.  Z?.,  etc.^  clerk^  a  defendant  here- 
inafter namedy  for  life;  and  state  the  demise  of  the  tithes  from 
the  said  E.  D.  to  the  complainant ;  and  also  state  a  siibsequent 
grant  of  an  annuity  out  of  the  profits  of  the  said  perpetual  cu- 
racy by  the  said  E.  D.  to  F.  G.^  another  defendant  hereinafter 
nayned?^  And  your  orator  further  showeth  unto  your  lordship 
that  the  said  E.  D.,  at  the  time  of  making  the  said  last-men- 
tioned indenture  or  grant  of  annuity  to  the  said  F.  G.,  and  on 

or  about  the day  of ,  in  the  year ,  was  actually 

a  prisoner  in  his  majesty's  King's  Bench  prison  for  debt,  at 
the  suit  of  one  L.  M.,  and  others  his  creditors ;  and  that  on 

the day  of ,  in  the  year ,  at  a  session  then  held 

at  Horsemonger  Lane,  in  the  parish  of  St.  Mary's,  Newing- 
ton,  in  and  for  the  county  of  Surrey,  the  said  E.  D.  applied  to 


no  IN    EQUITY. 

be  discharged  and  exonerated  under  and  by  virtue  of  a  certain 
act  of  Parliament  made  and  passed  in  the  fifty-first  year  of 
the  reign  of  his  late  majesty,  entitled  "An  act  for  the  relief  of 
certain  insolvent  'debtors'";  and  the  justices  of  the  peace 
present  at  such  sessions  adjudged  the  said  E.  D.  to  be  set  at 
liberty,  and  he  was  discharged  accordingly;  and  by  virtue  of 
the  said  act  of  Parliament,  all  the  real  and  personal  estate  of 
the  said  E.  D.  was  immediately  after  such  adjudication  there- 
by, and  now  is,  vested  in  N.  O.,  of,  etc.,  Esq.,  the  clerk  of  the 
peace  of  the  said  county  of  Surrey  (another  defendant  here- 
inafter named),  upon  the  trust,  and  for  the  purposes  in  the 
said  act  mentioned;  but  the  said  N.  O.  has  not  hitherto  made 
any  conveyance  or  assignment  thereof.  And  your  orator 
further  showeth  unto  your  lordship  that  your  orator,  in  pur- 
suance of  the  said  indenture  of  demise  so  made  by  the  said 

E.  D.,  as  aforesaid,  duly  paid  the  said  rent  of  £ ,  thereby 

reserved  for  the  said  tithes,  up  to  the day  of last ; 

and  your  orator  has  always  been  ready  and  desirous  to  pay 
the  rent  for  the  said  tithes,  which  has  become  due  since  that 
period,  to  the  person  or  persons  duly  entitled  to  receive  the 
same ;  and  your  orator  hoped  he  should  have  been  able  so  to 
have  paid  the  said  rent,  and  that  no  dispute  could  have  arisen 
concerning  the  same,  or  at  least  that  no  suit  would  have  been 
commenced  against  your  orator  in  respect  to  the  said  rent; 
and  that  the  said  E.  D.,  F.  G.,  and  N.  O.  would  have  settled 
between  themselves  their  differences  respecting  the  right  to 
receive  the  said  rent.  But  now  so  it  is,  may  it  please  your 
lordship,  the  said  E.  D.,  F.  G.,  and  N.  O.  respectively  claim 
to  be  entitled  to  the  said  rent;  and  the  said  E.  D.  has  lately 
commenced  an  action  in  his  majesty's  court  of  common  pleas 

at  Westminster,   for  the  recovery  of  the  sum  of  £ ,  on 

account  of  the  said  rent,  due  from  your  orator  since  

aforesaid.  And  the  said  E.  D.  pretends  that  he  is  discharged 
from  the  said  annuity  so  granted  by  him  as  aforesaid,  in  con- 
sequence of  his  having  taken  the  benefit  of  the  said  insolvent 
act,  and  that  the  interest  of  him,  the  said  E.  D.,  does  not 


BII.I.S    IN    SPECIAL    CASES.  Ill 

vest  in  the  said  N.  O.  as  such  clerk  of  the  peace  as  aforesaid, 
by  the  operation  of  that  act;  and  the  said  F.  G.  insists  that  he 
ought  to  be  paid  his  said  annuity  out  of  the  said  rent  now 
due  from  your  orator,  and  that  the  said  E.  D.  is  not  discharged 
from  such  annuity  under  or  by  virtue  of  such  insolvent  act, 
but  that  the  said  annual  rent,  payable  by  your  orator,  still 
remains  liable  to  the  payment  of  such  annuity,  and  he 
threatens  and  intends  to  proceed  at  law  against  your  orator, 
unless  the  said  annuity  be  paid  by  him  out  of  such  rent. 
And  the  said  N.  O.  pretends  and  insists  that  all  the  said 
estate,  right  and  interest  in  the  said  tithes  vested  in  him,  the 
said  N.O.,  as  such  clerk  of  the  peace  as  aforesaid,  by  the  opera- 
tion of  the  said  insolvent  act,  and  that  he  is  therefore  entitled 

to  receive  the  said  rent  of  £ ,  payable  by  your  orator, 

which  he  insists  is  no  longer  liable  to  the  payment  of  the  said 
annuity.  And  your  orator,  under  the  circumstances  aforesaid, 
is  in  danger  of  being  greatly  harrassed  on  account  of  the  said 
rent,  and  can  not  safely  pay  the  same  without  the  aid  of  this 
honorable  court.  And  that  the  said  E.  D.,  and  F.  G.,  and  N. 
O.,  respectively,  may  set  forth  to  whom  the  said  rent  is  due 
and  payable,  and  may  be  decreed  to  interplead  and  adjust  the 
said  several  claims  and  demands  between  themselves,  your 
orator  hereby  offering  to  account  for  and  pay  the  arrears  of 
the  said  rent  now  due  from  him  to  such  of  them,  the  said  E. 
D.,  F.  G.,  and  N.  O.,  as  the  same  shall  appear  of  right  to 
belong  and  be  payable,  on  being  indemnified  by  this  honora- 
ble court  in  so  doing,  or  to  pay  the  same  into  the  hands  of 
the  accountant-general  of  this  honorable  court,  to  be  disposed 
of  as  this  honorable  court  shall  direct.  And  that  the  said  E. 
D.  may  be  restrained  by  the  order  and  injunction  of  this 
honorable  court  from  further  prosecution  of  the  said  action 
so*  commenced  by  him  against  your  orator  as  aforesaid,  and 
that  he,  and  the  said  F.  G.  and  N.  O.,  respectively,  may  in 
like  manner  be  restrained  from  all  other  proceedings  at  law 
whatsoever,  touching  the  matters  in  question  in  this  suit,  or 
any  of  them.     [And  for  general  relief^     May  it  please,  etc. 


112  IN    EQUITY. 

[End  with  praying  an  injunction  in  the  terms  of  the  prayer y 
and  also  a  subpoena  against  the  said  E.  /?.,  F.  G.^  and  N.  (9.] 

(i)  Where  two  or  more  persons  whose  titles  are  connected  by  reason 
of  one  being  derived  from  the  other,  or  of  both  being  derived  from  a 
common  source,  claim  the  same  thing,  debt,  or  duty  by  different  or 
separate  interests  from  a  third  person,  and  he,  not  knowing  to  which 
one  of  the  claimants  he  ought  of  right  to  render  the  debt  or  duty,  or  to 
deliver  the  thing,  fears  that  he  may  be  hurt  by  some  of  them,  he  may 
maintain  a  suit  and  obtain  against  them  the  remedy  of  interpleader. 
In  his  bill  of  complaint  he  must  state  his  own  rights  and  their  several 
claims,  and  pray  that  they  may  interplead,  so  that  the  court  may 
adjudge  to  whom  the  debt,  thing,  or  duty  belongs,  and  he  may  be 
indemnified.  If  any  suits  at  law  have  been  brought  against  him  he 
may  pray  that  such  proceedings  be  restrained  until  the  right  be 
determined.  Mitford's  Eq.  PL,  pp.  58,  59.  If  the  party  has  in  any  way 
made  himself  liable,  even  for  the  same  demand,  to  two  claimants,  he 
can  not  have  a  bill  of  interpleader ;  for  it  is  absolutely  necessary  to 
enable  him  to  file  the  bill  that  he  should  be  liable  to  one  of  the  two 
claimants.  Crawford  z/j.  Fisher,  i  Hare,  436-441;  East  &  West  India 
Dock  Co.  vs.  Littledale,  7  Hare,  57-60 ;  Greene  vs.  Mumford,  4  R.  I., 
313  ;  Pfister  vs.  Wade,  56  Cal.,  43. 

For  particulars  with  reference  to  Bills  of  Interpleader  in  Federal 
Practice,  see  Beach's  Modern  Eq.  Prac,  Sec.  141  et  seq.;  Foster's  Eq. 
Prac,  Sees.  88  and  89. 


No.  104. 

Prayer  of  a  Bill  of  Interpleader. 

And  that  the  said  several  defendants  may  be  decreed  to 
interplead  touching  their  said  several  claims,  and  that  plain- 
tiff may  be  at  liberty  to  pay  the  several  sums  now  justly  and 
fairly  due  from  him  for  the  rent  of  the  said  messuage  or 
tenement  and  premises  into  the  bank,  in  the  name  and  with 
the  privity  of  the  accountant-general  of  this  honorable  court, 
in  trust  for  the  benefit  of  the  persons  or  person  entitled 
thereto,  subject  to  the  further  order  of  this  court,  after 
deducting  thereout  in  the  first  place  the  aforesaid  sum  of 
^36,  to  be  allowed  unto  plaintiff,  for  repairs  pursuant  to  the 
said  agreement,  together  with  all  sums  of  money  expended 


BILLS   IN   SPECIAL   CASES.  II3 

and  advanced  by  plaintiff  for  land  tax  and  other  necessary 
outgoings  in  respect  of  the  said  premises.  And  that  plain- 
tiff may  be  at  liberty  to  quit  the  possession  of  the  said 
premises,  and  that  possession  thereof  may  be  delivered  up  to 
such  person  or  persons  as  this  honorable  court  shall  direct 
or  appoint.  And  that  plaintiff  may  have  a  satisfaction  or 
allowance  made  unto  him  out  of  the  rent  of  the  said  premises 
for  the  several  articles  hereinbefore  and  in  the  said  first 
agreement  particularly  mentioned,  which  have  been  provided 
by  plaintiff  at  his  own  expense  for  the  said  premises.  And 
that  in  the  meantime  the  said  defendants,  S.  O.  and  T.  C, 
may  be  restrained  by  the  order  or  injunction  of  this  honor- 
able court  from  all  further  proceedings  in  the  aforesaid 
action  of  ejectment  brought  against  plaintiff,  and  that  they 
and  all  the  said  other  defendants  may  be  in  like  manner 
restrained  from  making  any  distresses  or  distress  upon  the 
said  messuage  or  tenement  and  premises,  and  from  com- 
mencing or  prosecuting  any  action  or  actions  at  law  against 
plaintiff  to  recover  the  rent  of  the  said  premises,  or  to  turn 
plaintiff  out  of  possession  thereof,  or  otherwise  from  pro- 
ceeding at  law  against  plaintiff  touching  any  one  of  the 
matters  aforesaid.  And  that  all  proper  and  necessary  direc- 
tions may  be  given  for  the  purposes  aforesaid.  [And  for 
further  relief^ 

No.  105. 

Form  of  Affidavit  to  be  Annexed  to  a  Bill  of  Inter- 
pleader. 

The  said  J.  C.  maketh  oath  and  saith  that  he  has  exhib- 
ited his  bill  of  interpleader  against  the  defendants  in  this 
cause  without  any  fraud  or  collusion  between  him  and  the 
said  defendants,  or  any  or  either  of  them ;  and  that  he,  the 
said  J.  C,  hath  not  exhibited  his  said  bill  at  the  request  of 
the  said  defendants,  or  of  any  or  of  either  of  them,  and  that 
he  is  not  indemnified  by  the  said  defendants,  or  by  any  or 


114  ^^   EQUITY. 

either  of  them,  and  saith  that  he  has  exhibited  his  said  bill 
with  no  other  intent  but  to  avoid  being  sued  or  molested  by 
the  said  defendants,  who  are  proceeding  or  threaten  to 
proceed  at  law  against  him  for  the  recovery  of  the  rent  of  the 
said  tithes  in  the  said  bill  mentioned. 

Sworn,  etc.,  J.  C. 


No.  106. 

Another  Form  of  Affidavit. 

A.  B.,  the  above-named  plaintiff,  maketh  oath  and  saith 
that  he  doth  not  in  any  respect  collude  with  either  of  the 
above-named  defendants  touching  the  matters  in  question  in 
this  cause,  nor  is  he  in  any  manner  indemnified  by  the  said 
defendants,  or  either  of  them,  nor  hath  he  exhibited  his  said 
bill  of  interpleader  at  the  request  of  them,  or  either  of  them, 
but  merely  of  his  own  free  will,  and  to  avoid  being  sued  or 
molested  touching  the  matters  contained  in  his  said  bill. 

Sworn,  etc.,  A.  B. 

No.  107. 

Still  Another  Form. 

I,  A.  B.,  the  above-named  plaintiff,  make  oath  and  say 
that  the  bill  in  this  suit  [or,  the  bill  hereunto  annexed]  is 
not  filed  by  me  in  collusion  with  any  or  either  of  the  defend- 
ants in  the  said  bill  named,  but  such  bill  is  filed  by  me  of 
my  own  accord  for  relief  in  this  honorable  court. 

Sworn,  etc.,  A.  B. 


No.  108. 

Against  an  Agent  for  Mismanagement. 
[Caption^  address^  and  introduction']. 

That  in  the  month  of he  was  the  owner  of  a  certain 

ship  or  vessel  called  the ,  then  lying  in  the  port  of , 


BILLS   IN   SPECIAL  CASKS.  II 5 

bound  on  a  voyage  to  ,  in  the  state  of ,  and  that 

being  desirous  to  procure  a  cargo  of  goods  and  merchandise 
to  be  carried  to  said ,  in  said  vessel  on  freight,  he  ap- 
plied to  said  C.  &  D.,  who  were  engaged  in  that  line  of  busi- 
ness, to  obtain  a  cargo  for  said  vessel  on  freight,  and,  as  a 
compensation  for  their  services  in  so  doing,  agreed  to  pay 
them  a  commission  of  five  per  centum  on  the  amount  of  the 
freight  and  primage  of  such  goods  and  merchandise  as  they 
should  procure  to  be  shipped  on  board  of  the  said  ship,  in 
consideration  of  which  they  agreed  to  act  as  his  agents  in  the 
premises,  and  to  make  use  of  their  knowledge,  skill  and 
ability  to  procure  a  full  cargo  for  said  vessel  on  freight,  and 
that  accordingly  the  lading  and  procurement  of  freight  were 
intrusted  to  them,  and  in  said  month  of ,  and  the  ensu- 
ing months  of and ,  they  did  procure  a  cargo  for 

said  vessel,  and  in  the  month  of she  set  sail  and  departed 

on  her  voyage  for  said . 

That  on  or  about  the day  of  said ,  said  C.  &  D. 

sent  to  your  orator  a  freight  list,  or  statement  of  the  amount 
of  merchandise  laden  on  board  of  the  said  vessel,  and  of  the 
rates  of  freight  thereof,  and  of  the  sums  of  money  to  be  earned 
and  paid  on  the  carriage  and  delivery  thereof  at  said  port  of 

(which  said  freight  list  your  orator  prays  leave  to  file  in 

court  as  a  part  of  this  bill),  by  which  it  appears  that  all  the 
merchandise  laden  on  board  of  the  said  ship  was  shipped  at 
specific  rates  of  freight  therein  set  down,  and  that  the  total 

amount  of  freight,  including  primage,  was  the  sum  of 

dollars,  upon  which  sum  the  said  C.  &  D.  claimed  of  your 
orator,  and  he  paid  to  them,  a  commission  of  five  per  centum, 

amounting  to  the  sum  of dollars,  together  with  other 

charges  for  advertising,  and  so  forth,  as  by  their  bill  here- 
with also  filed,  in  the  full  belief,  and  relying  on  the  assur- 
ance of  the  said  C.  &  D.,  made  by  sending  him  the  said  freight 
list  and  otherwise,  that  the  merchandise  therein  mentioned 
had  been  actually  laden  on  board  of  the  said  vessel,  to  be 
carried  and  delivered  at  and  for  the  rates  of  freight  therein 
specified. 


Il6  IN   EQUITY. 

That  the  said  ship  was  consigned  to  certain  persons  doing- 
business  at  said  — ,  under  the  firm  of  S.  &  M,,  who,  upon 

the  arrival  of  said  vessel  in  the  month  of ,  attended  to 

the  unlading  and  discharge  of  the  cargo,  the  collection  of 
the  freight  and  the  remittance  thereof  to  your  orator.  That 
upon  such  discharge  and  delivery  it  appeared  that  fifty-seven 
ilH  tons  of  pig-iron,  which  in  the    said  freight  list  were 

specified  as  shipped  at  the  rate  of dollars  per  ton,  and 

the  freight  of  which  was  therein  stated  to  amount  to 

dollars,  and  one  hundred  and  thirty-three  nests  tubs,  two 
hundred  nests  tubs,  and  seventy-five  dozen  pails,  which  in 
said  freight  list  were  specified  as   shipped  at  and  for  the 

freight  or  compensation  of dollars,  were  not  shipped 

at  such  rates  of  freight,  but  the  rate  of  freight  specified  there- 
for in  the  bills  of  lading  thereof  (which  were  not  signed  by 
the  master  of  said  ship,  but  by  the  said  C.  &  D.,  who  assumed 
to  act  as  his  agent  in  that  behalf  without  his  knowledge  or 
consent)  was  '•^ one-half  net  profits  over  costs  and  charges'''' \ 
that  the  said  iron,  tubs  and  pails,  as  your  orator  is  informed 
and  alleges,  could  not  be  sold  at  any  profit,  and  that  the  said 
S.  &  M.  did  not  collect,  and  your  orator  has  not  received,  any 
freight  or  compensation  for  the  carriage  and  delivery  thereof 
at  said . 

That  upon  receiving  information  from  the  said  S.  &  M.  of 
the  fact  that  said  iron,  tubs  and  pails  were  shipped  on  half 
profits  instead  of  the  rates  of  freight  stated  in  said  freight 
list,  your  orator  immediately  advised  the  said  C.  &  D.  that 
he  held  them  responsible  for  the  amount  of  freight  at  which 
they  had  represented  that  the  same  were  shipped,  and  upon 
which  they  had  charged  and  been  paid  their  full  commission, 
and  requested  payment  thereof,  which  they  refused  to  make. 

That  the  commission,  agency  and  trust,  for  which  your 
orator  retained  said  C.  &  D.,  was  to  procure  a  cargo  for  said 
vessel  to  be  carried  and  delivered  on  payment  of  freight  in 
money  at  specified  rates,  and  not  upon  half  profits;  that  the 
said  C.  &  D.  represented  to  your  orator  that  they  had  ob- 


BILLS   IN   SPECIAL   CASES.  II7 

tained  and  shipped  a  cargo,  upon  the  delivery  of  which  your 
orator  would  be  entitled  to  receive  the  sums  of  money  as 
freight  thereof  specified  in  the  said  freight  list;  that  said  C, 
&  D.  demanded  of  your  orator  a  commission  on  the  amount 
thereof,  as  so  shipped,  and  that  your  orator  paid  them  said 
commission,  in  the  full  belief  and  relying  upon  their  assur- 
ance, contained  in  said  freight  list,  that  the  various  articles 
therein  mentioned  were  shipped  at  the  rates  of  freight  therein 
specified,  and  that  upon  the  safe  delivery  thereof  your  orator 
would  be  entitled  to  receive  the  same  in  money. 

That  the  said  iron,  tubs  and  pails  were  safely  carried  to 

,  and  delivered  to  the  consignees  thereof,  and  that  upon 

-such  delivery  your  orator  had  earned  and  was  entitled  to  be 
paid  for  such -service  the  rates  of  freight  and  sums  of  money 
specified  in  the  said  freight  list,  the  same  being  the  usual 
and  current  rates  of  freight  upon  the  amounts  of  which,  as 
such,  the  said  C.  &  D.  charged  their  commissions  as  afore- 
said; that  by  reason  of  their  undertaking  to  carry  and  de- 
liver the  same  upon  half  profits  instead  of  on  freight  your 
orator  has  lost  the  sums  of  money  to  which  he  should  have 
been  entitled,  and  to  which  the  said  C.  &  D.  represented  that 
he  would  be  entitled,  on  the  delivery  thereof,  and  has  not  re- 
ceived and  is  not  entitled  to  claim,  by  reason  of  their  said 
doings,  any  compensation  from  the  owners  or  consignees  of 
the  said  goods  and  merchandise  for  the  cost  and  expense  of 
their  transportation  and  delivery ;  and  that  by  reason  of  the 
premises,  and  of  the  representation  made  that  the  said  goods 
and  merchandise  were  shipped  at  the  rates  of  freight  speci- 
fied in  the  said  freight  list,  the  said  C.  &  D.  are  bound  to  make 
good  the  loss  your  orator  has  suffered  by  their  said  doings, 
and  to  pay  to  him  the  sums  of  money  which  he  would  have 
received  if  the  said  goods  and  merchandise  had  been  shipped 
at  the  rates  specified  in  said  freight  list,  and  your  orator 
has  repeatedly  requested  them  so  to  do. 

But  now  so  as  it  is,  may  it  please  your  honors,  that  the 
said  C.  &  D.  absolutely  refuse  to  comply  with  such  re- 
quest. 


Il8  IN   EQUITY. 

To  the  end,  therefore,  that  they,  the  said  C.  &  D.,  may 
be  decreed  to  pay  to  your  orator  the  said  sums  of dol- 
lars, and (i)  dollars,  and  such  losses,  damages  and  interest 

as  your  orator  has  suffered  by  reason  of  the  premises,  and 
that  your  orator  may  have  such  other  relief  as  the  nature  of 
his  case  may  require,  and  that  the  said  C.  &  D.  may,  if 
'  they  can,  show  why  your  orator  should  not  have  the  relief 
hereby  prayed,  and  may  upon  their  several  corporal  oaths, 
and  to  the  best  of  their  knowledge  and  belief,  make  answer 
to  all  and  singular  the  premises. 

May  it  please  your  honors  to  grant  unto  your  orator  a 
writ  of  subpoena,  directed  to  the  said  A.  C.  and  A.  D.,  com- 
manding them  at  a  suitable  time  and  place  to  appear  before 
your  honors  to  make  answer  to  the  premises,  and  to  abide 
by  and  perform  such  order  and  decree  as  to  your  honors 
shall  seem  meet.  A.  B. 

X.  &  X.,  Solicitors  for  Plaintiff. 

[Verification.     See  No.  85.] 

(i)  See  No.  86,  note  2. 


BILLS   NOT   ORIGINAL.  II9 


BILLS  NOT  ORIGINAL. 

No.  109. 

Petition  for  Leave  to  File  Supplemental  Bill. 

\Caption^  as  in  an  original  bill.'\ 

The  petition  of  A.  B.,the  above  plaintiff,  respectfully  shows 

that  on  or  about  the day  of ,  your  petitioner  filed 

his  bill  in  this  honorable  court  against  C.  D.,  for  the  purpose 
of  [state  general  object  of  origittal  bill\  and  praying  [state 
the  prayer  verbatim^. 

And  your  petitioner  further  shows  that  the  said,  C.  D.,  be- 
ing served  with  process  of  subpoena,  appeared  to  the  said 
bill,  but  has  not  yet  put  in  his  answer  thereto.  That  after 
the  appearance  of  the  said  defendant  was  entered,  that  is  to 

say,  on  or  about  the day  of ,  and  before  any  further 

proceedings  were  had  in  the  said  cause  [state  the  supplemental 
matter']  ;  wherefore  your  petitioner  is  advised  that  it  is  nec- 
essary to  bring  the  said  C.  H.  before  this  court  as  a  party 
defendant  to  this  suit. 

Your  petitioner  therefore  prays  that  leave  may  be  granted 
to  him  to  file  a  supplemental  bill  against  the  said  C.  H.,  for 
the  purpose  of  making  him  a  party  defendant  to  this  suit 
with  proper  and  apt  words  to  charge  him  as  such,  and  with 
such  prayer  for  relief  as  may  be  proper,  and  for  such  other, 
etc. 


No.  110. 

Supplemental  Bill  (i). 

[Caption^  address^  and  introditction^  as  in  an  original  bill^ 

That  on  or  about,  etc.,  your  orator  exhibited  his  original 

bill  of  complaint  in  this  honorable  court,  against  C.  D.,  the 


I20  IN   EQUITY. 

defendant  hereinafter  named,  as  defendant  thereto,  thereby 

stating  a  certain  memorandum  of  agreement,  dated  the 

day  of ,  ,  and  made  between  E.  W.,  therein  de- 
scribed, of  the  one  part,  and  your  orator  of  the  other  part,  and 
signed  by  the  said  E.  W.,  whereby  the  said  E.  W.  agreed  to 
sell  to  your  orator  a  certain  lot  or  piece  of  land  called,  etc., 
therein  particularly  described,  and  of  which  the  said  E.  W. 

was  seized  in  fee,  for  the  sum  of dollars ;  and  further  stating 

the  delivery  by  the  said  E.  W.  of  the  abstract  of  his  title, 
and  the  acceptance  of  such  title  by  your  orator;  and  further 
stating  the  death  of  the  said  E.  W.,  intestate,  and  that  he  left 
the  said  J,  W.,  his  only  son  and  heir  at  law;  and  that  letters 
of  administration  of  the  estate  and  effects  of  the  said  E.  W. 

had  been  granted  by  the  surrogate  of  the  county  of to 

the  said  J.W. ;  and  further  stating  applications  on  the  part  of 
your  orator  to  the  said  J.  W.  to  perform  the  said  agreement 
so  entered  into  by  his  father  as  aforesaid,  and  his  refusal  to 
do  so ;  and  charging  that  the  said  lot  or  piece  of  land,  called, 
etc.,  formed  part  of  a  considerable  estate  called  Hesseltine, 
the  whole  of  which  had,  before  the  date  of  the  said  contract  for 

sale,  been  mortgaged  by  the  said  E.  W.  to  one  J.  S.  for 

dollars,  which  mortgage  debt  was  still  due  and  owing;  and 
charging  that  the  said  E.  W.  would,  if  living,  be  bound  to 
redeem  the  said  mortgage,  in  order  to  convey  the  said  lot  or 
piece  of  land  to  your  orator  free  from  incumbrances,  and 
that  the  said  J.  W.  was  bound  to  do  so  to  the  extent  of  his 
father's  assets,  which  your  orator  charged  were  amply  suf- 
ficient for  the  same;  and  praying  that  the  said  J.  W.  might 
be  decreed  specifically  to  perform  the  said  agreement  so 
entered  into  by  the  said  E.  W.  as  aforesaid,  and  to  convey 
and  procure  all  proper  parties  to  join  in  conveying  the  said 
lot  or  piece  of  land  comprised  in  the  said  agreement  to  your 
orator,  or  as  he  should  direct,  upon  your  orator  paying  to  the 

said  J.  W.  the  sum  of dollars,  which  your  orator  thereby 

oflFered  to  do,  and  in  all  respects  to  perform  the  said  agree- 
ment on  your  orator's  part;  and  in  case  the  said  J.W.  should 


BILI.S   NOT   ORIGINAI..  121 

not  admit  assets  of  his  said  father  sufficient  to  enable  him  to 
perform  the  said  agreement,  then  that  the  usual  accounts  of 
the  real  and  personal  estate  of  the  said  B.W. might  be  taken; 
and  that  your  orator  might  have  such  other  or  further  relief 
in  the  premises  as  the  circumstances  of  his  case  might  re- 
quire, and  to  your  honor  should  seem  meet. 

And  your  orator  further  shows  unto  your  honor  that  the 
said  J.  W.,  being  duly  served  with  process  of  subpoena,  ap- 
peared to  your  orator's  said  bill  and  put  in  his  answer  thereto, 
whereby  he  alleged,  among  other  things,  that  he  could  not 
perform  the  said  agreement  of  the day  of ,  with- 
out first  redeeming  the  said  mortgage  so  made  to  the  said 
J.  S.  as  aforesaid,  and  that  the  assets  of  the  said  J.  W.  were 
not  sufficient  to  enable  him  to  do  so. 

And  your  orator  further  shows  that  the  said  answer  has 
been  replied  to  by  your  orator,  and  witnesses  have  been  exam- 
ined on  both  sides,  but  the  proofs  have  not  yet  been  closed ; 
as  by  the  said  bill  and  proceedings,  now  remaining  as  of  rec- 
ord in  this  honorable  court,  reference  being  had  thereto,  will 
appear. 

And  your  orator  further  shows,  by  way  of  supplement, 
that  your  orator  has  lately,  and  since  the  examination  of  wit- 
nesses in  the  said  cause,  discovered,  as  the  fact  is,  that  the 
said  J.  S.  now  is  and  always  since  the  date  of  the  said  agree- 
ment has  been  ready  and  willing  to  concur  in  conveying  the 
said  lot  or  piece  of  land  to  your  orator  discharged  from  his 
said  mortgage,  upon  receiving  your  orator's  purchase-money 
in  discharge,  pro  tanto^  of  the  said  mortgage  debt. 

And  your  orator  charges  that  such  information  was  first 
given  to  your  orator  by  means  of  a  letter  addressed  by  the 
said  J.  S.  to  Mr.  X.,  your  orator's  solicitor,  and  dated,  etc., 
part  of  which  was  in  the  words  and  figures  following,  that  is 
to  say:  "Mr.  W.'s  refusal  to  carry  into  eifect  his  agreement 
with  Mr.  B.  is  unaccountable  to  me,  because  he  knows  that 
I  have  always  been  willing  and  even  desirous  to  confirm  the 
sale,  and  to  release  the  premises  from  my  mortgage  on  re- 


122  IN    EQUITY. 

ceiving  the dollars  towards  my  debt.     This,  in  fact,  was 

understood  between  his  father  and  myself  at  the  time  when 
the  sale  to  Mr.  B.  was  made";  as  by  such  letter,  reference 
being  had  thereto,  will  more  fully  appear. 

And  your  orator  charges,  therefore,  that  it  is  unimportant 
whether  the  said  J.  W.  has  assets  of  his  father  sufficient  to 
redeem  the  mortgage  debt  so  due  to  the  said  J.  S.  as  afore- 
said, inasmuch  as  the  said  J.  S.  is  willing  to  be  partially  re- 
deemed, and  the  purchase-money  of  your  orator  is  sufficient 
for  that  purpose. 

And  your  orator  charges  that  the  said  J.  W.  ought  to  be 
decreed  to  join  with  the  said  J.  S.  (whose  concurrence  your 
orator  undertakes  to  procure)  in  conveying  the  said  lot  or 
piece  of  land  to  your  orator,  upon  payment  by  your  orator 
of  the  said  sum  of dollars  to  the  said  J.  S.,  in  part  dis- 
charge of  his  said  mortgage  debt. 

To  the  end,  therefore,  that  the  said  defendant  may,  if  he 
can,  show  why  your  orator  should  not  have  the  relief  hereby 
prayed,  and  may,  upon  his  corporal  oath,  according  to  the 
best  and  utmost  of  his  knowledge,  remembrance,  informa- 
tion and  belief,  full,  true,  direct  and  perfect  answer  make  to 
all  and  singular  the  matters  aforesaid,  as  fully  and  explicitly 
as  if  the  same  were  here  repeated  and  he  particularly  inter- 
rogated thereto ;  and  more  especially  that  he  may  answer  and 
set  forth,  in  manner  aforesaid,  whether  your  orator  did  not, 
on  or  about,  etc.,  or  at  some  other  and  what  time,  exhibit  his 
original  bill  of  complaint  in  this  honorable  court  against  such 
person,  and  of  or  to  such  purport  or  effect  as  hereinbefore  in 
that  behalf  stated,  or  against  some  other  and  what  person, 
and  of  or  to  some  other  and  what  purport  or  effect,  or  how 
otherwise?  And  whether  thereupon  such  proceedings  were 
not  had  in  the  said  cause  as  are  hereinbefore  in  that  behalf 
stated,  or  how  otherwise?  And  whether  your  orator  has  not, 
since  the  examination  of  witnesses .  in  the  said  cause,  or  at 
some  other  and  what  period,  discovered,  and  whether  it  is  not 
the  fact  that  the  >said  J.  S.  now  is,  and  whether  or  not  he 


BILI.S   NOT   ORIGINAI,.  125 

always,  since  the  date  of  the  said  agreement,  has  been  ready 
and  wilHng  to  concur  in  conveying  the  said  lot  or  piece  of 
land  to  your  orator,  discharged  from  his  said  mortgage,  upon 
receiving  your  orator's  piirchase  money  in  discharge,  pro 
tanto^  of  the  said  mortgage  debt,  or  how  otherwise?  And 
whether  such  information  was  not  first  given  to  your  orator 
by  means  of  such  letter  as  hereinbefore  in  that  behalf  stated, 
or  some  other  and  what  letter,  or  by  some  other  and  what 
means,  or  how  otherwise,  and  when  was  such  information 
first  given  to  your  orator?  Whether  such  letter  as  is  herein- 
before mentioned  to  bear  date,  etc.,  was  not  addressed  by 
such  person  to  such  person,  and  whether  it  was  not  of  such 
date,  and  partly  in  such  words  and  figures,  or  of  or  to  such 
purport  or  effect,  as  hereinbefore  in  that  behalf  stated,  or 
addressed  by  some  other  and  what  person  or  persons,  to 
some  other  and  what  person  or  persons,  of  some  other  and 
what  date,  and  (with  respect  to  the  part  thereof  hereinbefore 
in  that  behalf  mentioned)  in  some  other  and  what  words  and 
figures,  or  of  or  to  some  other  and  what  purport  or  effect,  or 
how  otherwise?  Whether  it  is  not,  and  whether  not  for  the 
reasons  hereinbefore  in  that  behalf  given,  unimportant,  for 
the  purposes  of  these  suits,  whether  the  said  defendant  has 
assets  of  his  father  sufficient  to  redeem  the  said  mortgage 
debt,  or  how  otherwise?  And  whether  the  said  defendant 
ought  not  to  be  decreed  to  join  with  the  said  J.  S.  in  such 
conveyance  as  hereinbefore  in  that  behalf  stated,  or  in  some 
other  conveyance  of  the  same  nature,  upon  such  payment  by 
your  orator  as  hereinbefore  in  that  behalf  mentioned,  or  some 
other  and  what  payment,  or  how  otherwise ;  and  if  not,  why 
not. 

And  that  your  oratoi  may  have  the  same  relief  against  the 
said  J.  W.  as  he  might  have  had  if  the  facts  hereinbefore 
stated  and  charged  by  way  of  supplement  had  been  stated  in 
your  orator's  said  original  bill.  And  in  case  the  said  de- 
fendant shall  continue  to  allege  that  he  has  not  assets  of  the 
said  E.  W.  sufficient  for  the  redemption  of  the  mortgage 


124  ^^   EQUITY. 

debt  so  due  to  the  said  J.  S.  as  aforesaid,  then  that  he  may 
be  decreed  to  join  with  the  said  J.  S.  in  conveying  the  said 
lot  or  piece  of  land  comprised  in  the   said   agreement  of 

the day  of ,  unto  your  orator  and  his  heirs,  or  as 

he  shall  direct,  upon  your  orator  paying  to  the  said  J.  S.  the 
said  purchase-money  or  sum  of dollars  towards  the  dis- 
charge of  the  said  mortgage  debt;  your  orator  hereby  offer- 
ing to  pay  such  sum,  and  in  all  respects  to  perform  the  said 

agreement  of  the  day  of  ,  on  his  part,  and  also 

undertaking  to  procure  the  concurrence  of  the  said  J.  S.  in 
such  conveyance  as  aforesaid ;  and  that  your  orator  may  have 
such  further  or  other  relief  in  the  premises  as  the  circum- 
stances of  his  case  may  require,  and  to  your  honor  shall  seem 
meet.     May  it  please,  etc.  \_process  of  subpoena]. 

(i)  New  averments  are  properly  alleged  in  a  supplemental  bill,  and 
in  it  any  party  may  be  brought  before  the  court  who  has  been  omitted 
to  be  introduced  at  the  stage  of  the  cause  at  which  an  amendment  for 
that  purpose  may  be  made.  Dow  vs.  Jewell,  45  Am.  Dec,  371.  Thus, 
where  a  complainant  had  no  ground  for  proceeding  originally,  but 
subsequently  becomes  entitled  to  relief,  he  should  file  a  new  bill. 
Caudler  vs.  Pettit,  19  Am.  Dec,  399.  And  the  assignee  of  complainant 
must  make  himself  a  party  by  supplemental  bill ;  he  can  not  proceed 
in  the  name  of  the  original  party.  Mills  vs.  Hoag,  31  Am.  Dec,  271. 
But  where  a  complainant  has  assigned  his  interest  in  the  subject- 
matter  of  the  litigation  pending  the  suit,  his  assignee  can  not  on  a 
supplemental  bill  be  substituted  to  his  rights  ;  he  must  file  an  original 
bill  in  the  nature  of  a  supplemental  bill.   Tappan  vs.  Smith,  5  Biss.,  73. 

New  oral  testimony,  tending  merely  to  corroborate  evidence  on  the 
one  side,  or  to  contradict  evidence  on  the  other,  on  the  points  in  issue, 
is  not  a  sufiicient  foundation  for  a  supplemental  bill.  No  new  evi- 
dence is  a  sufiicient  foundation  for  a  supplemental  bill,  unless  it  be  of 
such  a  nature  that  it  would,  if  unanswered,  require  a  reversal  of  the 
decree.     Jenkins  vs.  Eldridge,  3  Story,  299. 

A  bill  stating  previous  proceedings  of  the  court,  not  with  a  view  to 
their  alteration  or  amendment,  but  as  a  portion  of  the  facts  out  of 
which  the  complainant's  equity  arises,  is  an  original  bill,  though  it  is 
alleged  to  be  a  supplemental  bill.     Brooks  vs.  Brook,  38  Am.  Dec,  310. 

After  a  case  has  been  argued  and  has  been  under  advisement,  it  is 
proper  for  the  circuit  court  to  deny  the  motion  for  leave  to  file  a  fur- 


BILLS   NOT  ORIGINAL.  I25 

ther  bill,  making  an  essential  change  in  the  character  and  objects  of 
the  cause,  by  way  of  supplement  and  amendment.  Snead  vs.  McCouU, 
12  How.,  407. 

See  also  Beach's  Modern  Eq.  Prac,  Sees.  490  and  505  ;  and  as  to 
jurisdiction  of  federal  courts  in*  respect  to  citizenship  and  amount  in 
controversy  see  Act  of  March  3,  1887,  25  Stat,  at  L,.,  433  ;  Desty's  Fed. 
Proc.,  Sec.  84. 


111. 


Supplemental  Bill   Against  the   Assignee   of  a   Bankrupt 

Defendant. 

\Caption^  address^  and  introduction^  as  in  an  original  bill^ 

That  your  orator,  A.  B.,  did  in  or  as  of term, , 

exhibit  his  original  bill  of  complaint  in  this  honorable  court 

against  C.  D.,  of ,  praying  that  an  account  might  be 

taken  of  the  personal  estate,  eflfects,  etc.  And  your  orator 
further  shows  that  the  said  defendant,  having  been  served 
with  process  to  appear,  appeared  accordingly  and  put  in  his 
answer  to  the  said  bill,  and  your  orator  replied  to  the  (said 
answer,  but  before  any  further  proceedings  were  had  in  the 

said  cause,  and  on  or  about  the day  of ,  the  said 

C.  D.  has  been  duly  found  and  declared  bankrupt,  apd  E.  D., 

of ,  the  defendant  hereinafter  named,  having  been  since 

duly  chosen  assignee  of  the  estate  and  effects  of  the  said 
bankrupt,  there  have  been  duly  conveyed  and  assigned  all 
the  estate  and  eflfects  late  of  the  said  bankrupt  to  the  said 
E.  D.,  and  therefore  your  orator  is  advised  that  he  is  entitled 
to  the  same  relief  against  the  said  E.  D.  as  he  would  have 
been  entitled  to  against  the  said  C.  D.  if  he  had  not  become 
bankrupt.     To  the  end  therefore,  etc. 

And  that  your  orator  may  have  the  full  benefit  of  the  said 
suit  and  proceedings  therein  against  the  said  E.  D.,  and  may 
have  the  same  relief  against  him  as  your  orator  might  or' 
could  have  had  against  the  said  C.  D.  in  case  he  had  not 
become  bankrupt ;  or  that  your  orator  may  have  such  further 
or  other  relief  in  the  premises  as  to  your  honors  shall  seem 
meet.     May  it  please,  etc. 


126  IN   EQUITY. 

No.  112. 

Supplemental  Bill  to  an  Original  and  Amended  Bill  Filed 
by  a  Lessee  for  the  Specific  Performance  of  an  Agree- 
ment to  Grant  a  Further  Lease. 

[Caption,  address ,  and  introduction,  as  in  an  original  bill^ 

That  in  or  as  of term, ,  your  orator,  A.  B.,  exhib- 
ited his  original  bill  of  complaint  in  this  honorable  court 
against  H.  B.,  and  which  said  bill  has  been  amended  by 
order  of  this  honorable  court,  thereby  praying  that  the  said 
defendant  might  be  decreed  specifically  to  perform  his  agree- 
ment with  your  orator,  touching  the  lease  of  the  farm  and 
premises  in  the  said  bill  mentioned,  and  to  grant  your  orator 
a  lease  thereof  for years,  commencing  from  the  expira- 
tion of  his  former  lease,  at  the  yearly  rent  of dollars, 

your  orator  being  willing  and  ready  to  do  and  perform 
everything  on  his  part  required  to  be  done  and  performed  in 
pursuance  of  the  said  agreement. 

And  your  orator  further  shows  that  the  said  defendant 
appeared  and  put  in  his  answer  to  the  said  original  bill.  As 
by  the  said  bill  and  answer  now  remaining  as  of  record  in 
the  honorable  court,  reference  being  thereunto  had,  will  ap- 
pear. 

And  your  orator  further  shows,  by  way  of  supplement,  that 
since  the  filing  of  the  said  original  bill  the  said  defendant  has 
caused  an  action  of  ejectment  to  be  commenced  in  the  court  of 

,  for  the  purpose  of  turning  your  orator  out  of  possession 

of  the  said  farm  and  premises,  and  the  said  action  is  still  de- 
pending in  the  said  court.  And  your  orator  being  advised 
that  the  said  defendant  can  not  support  such  action,  and  that 
your  orator  is  entitled  to  a  specific  performance  of  the  said 
agreement  as  prayed  by  his  said  amended  bill,  he  has,  by 
himself  and  his  agents,  several  times  applied  to,  and 
requested  the  said  defendant  to  desist  from  proceeding  in 
the  said  action,  and  he  was  in  hopes  that  he  would  have 
complied  with  such  fair  and  reasonable  requests,  as  in  justice 


BILLS    NOT   ORIGINAL.  127 

and  equity  he  ought  to  have  done.  But  now  so  it  is,  may  it 
please  your  honors,  that  the  said  H.  B.  refuses  to  comply 
with  your  orator's  said  requests,  and  insists  upon  proceeding 
in  his  said  action,  and  to  turn  your  orator  out  of  possession 
of  the  said  farm  and  lands,  to  the  manifest  wrong  and  injury 
of  your  orator  in  the  premises.  To  the  end,  therefore,  that, 
etc.     [See  No.  74,  and  interrogate  to  the  statements^ 

And  that  the  said  defendant  may  be  restrained  by  the  in- 
junction of  this  honorable  court  from  proceeding  in  the 
said  action,  and  from  commencing  any  other  action  or  pro- 
ceeding at  law  for  the  purpose  of  turning  your  orator  out  of 
possession  of  the  said  farm  and  lands.  [And  for  further 
relief?^     May  it  please,  etc. 

[Pray  subpoena  and  injunction  against  H.  B.  See  notes  to 
No.  no.] 


No.  113. 

Supplemental  Bill  in  a  Patent  Case. 

For  form,  see  under  title  '*  Patents." 


No.  114. 

To  Perpetuate  Testimony. 

[Caption^  address.,  and  introduction^ 

The  plaintiff,  A.  B.,  of,  etc.,  shows  unto  your  honors  that 
C.  D.,  late  of,  etc.,  deceased,  before  and  at  the  time  of  mak- 
ing his  will  hereinafter  mentioned,  was  seized  in  fee  of  and 
in  divers  freehold  estates,  which  are  hereinafter  more  fully 
mentioned  and  described;  and  the  said  CD.,  being  so  seized 
as  aforesaid,  and  being  of  sound  and  disposing  mind,  memory 
and  understanding,  duly  made    and  published  his  last  will 

and  testament  in  writing,  bearing  date  the day  of , 

signed  by  him,  the  said  C.  D.,  and  subscribed  and  attested 
according  to  law ;  and  which  said  will,  with  the  attestation 


128  IN   EQUITY. 

thereof,  is  in  the  words  and^figures  following :  that  is  to  say, 
yei  out  the  will  and  the  attestation  verbatim^  as  by  the  said 
will  and  the  attestation  clause  thereof,  reference  being  thereto 
had,  will  appear. 

And   the    plaintiflf   further  shows  unto   your  honors  that 

the  said  C.  D.  departed  this  life  on  or  about  the day  of 

,  without  having  revoked  or  altered  his  said  will,  leaving 

his  brother  E.  D.,  of,  etc.,  the  defendant  hereinafter  named,  his 
heir  at  law ;  and  upon  the  death  of  the  said  testator,  the  plain- 
tiff, under  and  by  virtue  of  the  said  will,  entered  upon  and  took 
possession  of  all  the  said  freehold  estates  thereby  devised  to 
the  plaintiff  for  life,  and  the  plaintiff  is  now  in  possession 
thereof.  And  the  plaintiff  hoped  that  no  disputes  would 
have  arisen  respecting  the  devises  contained  in  the  said  will 
or  the  validity  thereof.  But  now  so  it  is,  etc.,  the  said  E.  D. 
pretends  that  the  said  will  is  void  and  ineffectual;  and 
although  he  will  not  dispute  the  validity  thereof  during  the 
lives  of  the  subscribing  witnesses  thereto,  yet  he  threatens 
and  intends  to  do  so  when  they  are  dead,  so  that  the  plaintiff 
may  be  deprived  of  their  testimony. 

And  the  plaintiff  further  showeth  that  all  of  the  said  sub- 
scribing witnesses  are  upwards  of  seventy  years  of  age  .and 
in  feeble  health  [or^  are  about  to  depart  from  the  United 
States],  and  that  the  plaintiff  fears  the  testimony  of  the  said 
witnesses  may  be  lost  by  their  death  [or^  departure  from  the 
United  States]  before  the  cause  can  be  investigated  in  a 
court  of  law. 

In  consideration  whereof,  etc.;  and  that  the  plaintiff  may 
be  at  liberty  to  have  the  several  subscribing  witnesses  to  said 
will  examined,  and  that  the  plaintiff,  if  necessary,  may  have 
a  commission  or  commissions  for  the  examination  of  the  said 
subscribing  witnesses  to  the  said  will,  to  the  end  that  their 
testimony  may  be  preserved  and  perpetuated ;  and  that  the 
plaintiff  may  be  at  liberty  to  read  and  make  use  of  the  same 
on  all  future  occasions,  as  he  shall  be  advised.  May  it  please 
your  honors,  etc. 


BILLS   NOT   ORIGINAL.  129 

No.  115. 

Of  Revivor   (i)    (Before   Decree)  by  the  Administrator  of 
the  Plaintiff  in  the  Original  Suit. 

[Caption^  address^  and  introduction^  as  in  an  original  bill^ 

That  J.  A.,  late  of ,  but  now  deceased,  on  or  about 

-,  exhibited  his  original  bill  of  complaint  in  this  honor- 


able court  against  G.  T.,  of ,  as  the  defendant  thereto, 

thereby  stating,  etc.,  praying,  etc.  [Here  state  the  prayer^ 
And  the  plaintiff  further  shows  unto  your  honors  that  the 
said  defendant,  having  been  duly  served  with  process  for 
that  purpose,  appeared  and  put  in  his  answer  to  said  bill,  as 
in  and  by  the  said  original  bill,  etc.  And  the  plaintiff  fur- 
ther shows  that  some  proceedings  have  been  had  before 
C.  G.,  one  of  the  masters  of  this  court,  to  whom  this  cause 
stands  referred,  but  no  general  report  has  yet  been  made  in 
the  said  cause  ;    and  that  the    said  J.  A.  lately  and  on  or 

about  the day  of ,  departed  this  life,  having  first 

made  and  published  his  last  will  and  testament  in  writing, 
bearing  date  the day  of ,  and  a  codicil  thereto  bear- 
ing date  the day  of ,  and  thereby  appointed  M.  C. 

and  W.  W.  executors  thereof. 

And  the  plaintiff  further  shows  that  the  said  M.  C.  and 
W.  W.  have  renounced  probate  of  the  said  will  and  codicil 
of  the  said  J.  A.,  deceased,  and  decline  to  act  in  the  trusts 
thereof,  and  that  the  plaintiflf  has  obtained  letters  of  adminis- 
tration with  the  will  annexed  of  the  goods,  chattels,  rights, 
and  credits  of  the  said  J.  A.,  deceased,  to  be  granted  to  him 
by  and  out  of  the  proper  court,  and  has  thereby  become  and 
now  is  his  legal  personal  representative. 

And  the  plaintiff  further  shows  that  the  said  suit  and  pro- 
ceedings have  become  abated  by  the  death  of  the  said  J.  A., 
and  the  plaintiff  is,  as  he  is  advised,  entitled  to  have  the  said 
suit  and  proceedings  revived  against  the  said  defendant  G. 
T.,  and  the  said  accounts  by  the  aforesaid  order  of  reference 
directed,  prosecuted,  and  carried  on,  and  to  have  the  said 


130  IN   EQUITY. 

cause  put  in  the  same  plight  and  condition  as  the  same  was 
in  previously  to  the  abatement  thereof  by  the  death  of  said 
J.  A. 

To  the  end,  therefore,  that  the  said  defendant  may  answer 
the  premises;  and  that  the  said  suit  and  proceedings  which 
so  became  abated  as  aforesaid  may  stand  revived,  and  be  in 
the  same  state  and  condition  as  the  same  were  in  at  the  time 
of  the  death  of  the  said  J.  A.,  or  that  the  defendant  may 
show  good  cause  to  the  contrary.  May  it  please  your  honors 
to  grant  unto  the  plaintiff  a  writ  of  subpoena  to  revive  [and 
answer],  issuing  out  of  and  under  the  seal  of  this  honorable 
court  to  be  directed  to  the  said  G.  T.,  thereby  commanding 
him  at  a  certain  day  and  under  a  certain  penalty,  to  be  there- 
in limited,  personally  to  be  and  appear  before  your  honors, 
in  this  honorable  court,  then  and  there  [to  answer  the  pre- 
mises and]  to  show  cause,  if  he  can,  why  the  said  suit,  and 
the  proceedings  therein  had,  should  not  stand  and  be  revived 
against  him,  and  be  in  the  same  plight  and  condition  as  the 
same  were  in  at  the  time  of  the  abatement  thereof;  and  fur- 
ther, to  stand  to,  and  to  abide,  such  order  and  decree  in  the 
premises  as  to  your  honors  shall  seem  meet.  And  the  plain- 
tiff shall  ever  pray,  etc. 

[  Where  it  is  only  necessary  to  pray  a  subpoena  to  revive^ 
the  words  within  brackets  should  be  omitted^ 

(i)  For  requisites  for  a  bill  of  revivor,  consult  Beach's  Modern  Eq. 
Prac,  Sec.  486;  Foster's  Fed.  Prac,  Sec.  180.  Upon  a  bill  of  revivor 
the  sole  questions  before  the  court  are,  the  competency  of  the  parties, 
and  the  correctness  of  the  bill  to  revive.  General  objections  to  the 
original  bill,  grounded  on  its  not  showing  a  proper  case  for  the  inter- 
ference of  a  court  of  equity,  should  be  reserved  until  after  the  revivor 
of  the  bill.  Bettes  vs.  Dana,  2  Sumn.,  383.  Compare  Oliver  vs.  Daca- 
tur,  4  Cranch  C.  C,  592 ;  Kennedy  vs.  Bank  of  Georgia,  8  How.,  586. 


BILLS   NOT  ORIGINAL.  I31 

No.  116. 

Of  Revivor  and  Supplement  Where    Both   Parties  in 
Original  Bill  are    Deceased   (i). 

[Caption^  address ^  and  introduction^  as  in  an  original  bill^ 

That  A.  B.  and  S.  B.  are  the  executors  named  and  ap- 
pointed in  and  by  the  last  will  and  testament  of  H.  W.,  late 

of,  etc.,  deceased,  that  on  or  about  the  day  of  July, 

,  the  said   H.  W.   exhibited    his    bill  of  complaint    in 

this  honorable  court  against  T.  W.,  late  of,  etc.,  deceased, 
thereby  praying  that  the  said  T.  W.  might  be  decreed  by  this 
honorable  court  to  come  to  a  just  and  fair  account  with  the 
said  H.  W.  for  the  principal  and  interest  then  due  and  owing 
to  him  on  the  mortgage  security  in  the  said  bill  mentioned, 
and  might  pay  the  same  to  the  said  H.  W.  by  a  short  day  to 
be  appointed  by  this  honorable  court,  together  with  his  costs ; 
and  in  default  thereof,  that  the  said  T.  W.  might  stand  ab- 
solutely barred  and  foreclosed  of  and  from  all  manner  of  benefit 
and  advantage  of  redemption  or  claim  in  or  to  the  residue  of 
the  respective  mortgaged  premises  in  the  said  bill  mentioned, 
and  every  part  thereof.  And  the  said  defendant  T.  W.,  having 
been  duly  served  with  process,  appeared  thereto,  and  departed 

this  life  on  or  about  the  day  of ,  without  having 

put  in  his  answer  to  the  said  bill. 

And  your  orators  show  unto  your  honors  by  way  of  sup- 
plement to  the  said  original  bill,  that  the  said  defendant  T.  W. 
departed  this  life  intestate,  leaving  his  wife  E.  W.,  a  defendant 
hereinafter  named,  enceinte  with  a  child  since  bom  and  named 
A.  W.,  and  thC  said  A.  W.  is  now  the  sole  heiress  at  law  of 
the  said  T.  W.,  deceased,  and,  as  such,  entitled  to  the  equity 
of  redemption  of  the  said  mortgaged  premises. 

And  your  orators  further  show  unto  your  honors  that  on 

or  about  the day  of , ,  letters  of  administration 

of  the  goods,  chattels,  and  effects  of  the  said  T.  W.,  deceased, 

were  duly  granted  by  the  court  of unto  his  widow,  the 

said  E.  W.,  who  is  thereby  become  his  sole  personal  repre- 
sentative. 


133  IN  EQUITY. 

And  your  orators  further  show  unto  your  honors  that  the 
said  complainant  H.  W.  departed  this  life  on  or  about  the 
day  of ,  having  previously  duly  made  and  pub- 
lished his  last  will  and  testament  in  writing,  bearing  date  on 

or  about  the day  of ,  and  thereof  appointed  your 

orators  joint  executors;  and  on  or  about  the day  of , 

your  orators  duly  proved  the  said  will  in  the  said  court  of 

,  and  took  upon  themselves  the  burthen  of  the  execution 

thereof. 

And  your  orators  further  show  that  upon  the  death  of  the 
said  H.  W.  the  said  mortgaged  premises  became,  and  the  same 
are  now,  vested  absolutely  at  law  in  your  orators,  as  his  legal 
personal  representatives,  subject  nevertheless  to  redemption, 
on  payment  of  the  principal  money  and  interest  thereby  se- 
cured. 

And  your  orators  further  show  unto  your  honors  that  the 
said  suit  having  become  abated  by  the  death  of  the  said  T. 
W.,  your  orators  are  advised  that  they,  as  the  personal  re- 
presentatives of  the  said  H.  W.,  deceased,  are  entitled  to  have 
the  same  revived  and  restored  as  against  the  said  E.  W.  and 
A.  W.  to  the  same  plight  and  condition  in  which  it  was  at  the 
time  of  the  death  of  the  said  T.  W.,  and  to  have  the  same 
relief  against  the  said  E.  W.  and  A.  W.  To  the  end,  there- 
fore, that  the  said  E.  W.  and  A.  W.  may,  upon  their  respective 
corporal  oaths,  etc.     [Interrogate  as  to  the  statements?^ 

And  that  the  said  E.  W.  and  A.  W.  may  answer  the  said 
original  bill,  and  that  they  may  be  decreed  by  this  honorable 
court  to  come  to  a  just  and  fair  account  with  your  orators  for 
the  principal  and  interest  now  due  and  owing  ^o  your  orators 
on  the  said  mortgage  securities,  and  may  pay  the  same  to  your 
orators  by  a  short  day  to  be  appointed  by  this  honorable  court, 
together  with  your  orators'  costs,  and  in  default  thereof,  that 
the  said  defendants  may  stand  and  may  be  absolutely  barred 
and  foreclosed  of  and  from  all  manner  of  benefit  or  advantage 
of  redemption  or  claim  in  or  to  the  said  mortgaged  premises, 
and  every  part  thereof;  and  that  the  said  suit  may  stand  and 


BILLS   NOT  ORIGINAL.  I33 

be  revived  against  the  said  defendants,  and  be  in  the  same 
pHght  and  condition  in  which  the  same  was  at  the  time  of  the 
decease  of  the  said  defendant  T.  W.,  or  that  the  said  E.  W.  and 
A.  W.  respectively  may  show  good  cause  to  the  contrary. 
May  it  please,  etc. 

(i)  See  note  to  No.  115. 


No.  117. 
Of  Review  to  Examine  and  Reverse  a  Decree  (i). 

[Caption^  address^  and  introduction^ 

That  in term,  in  the  year ,  W.  S.,  of,  etc.  (the 

defendant  hereinafter  named),  exhibited  his  bill  of  complaint 
in  this  honorable  court  against  your  orator,  and  thereby  set 
forth  that,  etc.  \here  insert  tJte  original  bill].  And  your 
orator  being  served  with  a  subpoena  for  that  purpose,  appeared 
and  put  in  his  answer  to  the  said  bill,  to  the  effect  following: 
[Here  recite  the  substance  of  the  answer].  And  the  said  W.  S. 
replied  to  the  said  answer,  and  issue  having  been  joined,  and 
witnesses  examined,  and  publication  duly  passed,  the  said 
cause  was  set  down  to  be  heard,  and  was  heard  before  your 
honors,  the day  of last,  when  a  decree  was  pro- 
nounced, which  was  afterwards  passed  and  entered,  in  which 
it  was  set  forth  and  recited,  that  it  was  at  the  hearing,  on 
your  orator's  behalf,  insisted  that  your  orator  had,  by  his 
answer,  set  forth  that,  etc.  [here  insert  the  recital  and  de- 
cree].    And  the  said  decree  has  since,  and  on  or  about , 

been  duly  signed  and  enrolled,  and  which  said  decree  your 
orator  humbly  insists  is  erroneous,  and  ought  to  be  reviewed, 
reversed,  and  set  aside  for  many  apparent  errors  and  imper- 
fections, inasmuch  as  it  appears  by  your  orator's  answer,  set 
forth  in  the  body  of  the  said  decree,  [here  insert  the  appar- 
ent errors].  And  no  proof  being  made  thereof,  no  decree 
ought  to  have  been  made  or  grounded  thereon ;  but  the  said 
bill  ought  to  have  been  dismissed  for  the  reasons  aforesaid. 


134  IN   EQUITY. 

In  consideration  whereof,  and  inasmuch  as  such  errors  and 
imperfections  appear  in  the  body  of  the  said  decree,  and 
there  is  no  proof  on  which  to  ground  any  decree  to  set  aside 
the  said  rent-charge,  your  orator  hopes  that  the  said  decree 
will  be  reversed  and  set  aside,  and  no  further  proceedings 
had  thereon.  To  the  end,  therefore,  that  the  said  W.  S.,  etc. 
\_See  No.  74.]  And  that  for  the  reasons,  and  under  the  cir- 
cumstances aforesaid,  the  said  decree  may  be  reviewed, 
reversed,  and  set  aside,  and  no  further  proceedings  taken 
thereon,  and  your  orator  permitted  to  remain  in  the  undis- 
turbed possession  and  enjoyment  of  the  said  rent-charge. 
\Prayer  for  subpoena  in  usual  for  m?^ 

( I )  To  authorize  a  bill  of  review,  under  either  the  English  or  Ameri- 
can practice,  error  must  appear  on  the  face  of  the  decree  or  pleadings, 
and  the  evidence  at  large  can  not  be  gone  into.  Seguin  vs.  Maverick, 
76  Am.  Dec,  117.  And  leave  of  the  court  must  be  obtained  before 
filing  the  bill.  Simpson  vs.  Watts,  62  Am.  Dec,  392.  Consult  Beach's 
Modern  Eq.  Prac,  Sec.  852  et  seq. 


No.  118. 

Petition  for  Leave  to  File  a  Bill  of  Review  for   New 

Matter. 

\CapHon^ 

The  petition  of  A.  B.,  the  above  plaintiff,  respectfully 
shows  that  on  or  about  the  day  of ,  your  peti- 
tioner filed  his  bill  in  this  honorable  court  against  C.  D.  for 
the  purpose  of  \state  general  object  of  original  bill\  and  pray- 
ing [state  the  prayer  verbatim]. 

And  your  petitioner  further  shows  that  the  said  C.  D., 
being  served  with  process  of  subpoena,  appeared  to  the  said 
bill  and  put  in  his  answer  thereto,  to  which  a  replication  was 
filed.  And  the  said  cause  was  thereupon  examined  on  both 
sides,  and  the  proofs  closed.     And  that  the  said  cause  was 

brought  to  a  hearing  before  your  honor  on ,  whereupon 

a  decree  was  made  to  the  following  effect  [set  forth  substance 
of  decree]. 


BILLS    NOT   ORIGINAL.  I35 

And  your  petitioner  further  shows  that  such  decree  has 
since  been  duly  enrolled. 

And  your  petitioner  further  shows  that  since  the  time  of 
pronouncing  the  said  decree  your  petitioner  hath  discovered 
new  matter  of  consequence  in  the  said  cause;  particularly 
that  E.  F.,  deceased,  the  uncle  of  the  said  C.  D.,  of  whom 
the  said  CD.  claims  to  be  sole  heir  at  law,  left  two  sons  and 
a  daughter  him  surviving,  named  respectively,  etc.,  who 
were  his  heirs  at  law;  and  that  such  sons  and  daughter  are 
still  alive  and  residing  at,  etc. ;  which  new  matter  your  peti- 
tioner did  not  know,  and  could  not  by  reasonable  diligence 
have  known,  so  as  to  make  use  thereof  in  the  said  cause,  pre- 
vious to  and  at  the  time  of  pronouncing  the  said  decree. 

Your  petitioner  therefore  prays  that  he  may  be  at  liberty 
to  file  a  bill  of  review  for  the  purpose  of  having  the  said  de- 
cree reviewed,  reversed  and  set  aside,  and  that  no  further 
proceedings  may  be  had  under  the  same. 

And  your  petitioner,  etc. 


No.  119. 

Of  Review  for  New  Matter  (i). 

[Caption^  address^  and  introduction^ 

That  on  or  about ,  C.  D.,  of,  etc.,  the  defendant  herein, 

exhibited  his  bill  of  complaint  in  this  honorable  court  against 
the  plaintiff,  and  thereby  set  forth  that,  etc.  [Here  insert  the 
original  bill.']  And  the  plaintiff  being  duly  served  with  process 
for  that  purpose,  appeared  and  put  in  his  answer  to  the  said 
bill,  to  the  effect  following:  [Here  state  the  substance  of  the 
answer?^  And  the  said  CD.  replied  to  the  said  answer,  and 
issue  having  been  joined  and  witnesses  examined,  and  the 
proofs  closed  [or,  the  said  C  D.  joined  issue  on  the  answer, 
and],  the  said  cause  was  set  down  to  be  heard,  and  was  heard 

before  your  honors,  on  the day  of ,  when  a  decree 

was  pronounced,  whereby  your  honors  decreed  that  the  plain- 
tiff's title  to  the  premises  was  valid  and  eflfectual,  after  which 


136  IN   EQUITY. 

the  said  C.  D.  petitioned  your  honors  for  a  rehearing,  and  the 
said  cause  was  accordingly  reheard,  and  a  decree  of  reversal 
made  by  your  honors  on  the  ground  of  the  said  C.  D.  being 
the  heir  at  law  of  the  said  E.  F.,  deceased,  and  which  said 
decree  of  reversal  was  afterwards  duly  signed  and  enrolled,  as 
by  the  said  decree  and  other  preceedings  now  remaining  filed 
as  of  record  in  this  honorable  court,  reference  being  thereto 
had,  will  appear. 

And  the  plaintiff  shows  unto  your  honors,  by  leave  of  this 
honorable  court  first  had  and  obtained  for  that  purpose,  by 
way  of  supplement,  that  since  the  signing  of  the  said  decree 
of  reversal  the  plaintiff  has  discovered,  as  the  fact  is,  that  the 
said  B.  F.  was,  in  his  lifetime,  seized  in  his  demesne  as  of  fee, 
of  and  in  the  hereditaments  and  premises  in  question  in  the 
said  cause,  and  that  the  said  E.  F.,  while  so  seized,  and  when 
of  sound  mind,  duly  made  and  published  his  last  will  and 

testament  in  writing,  bearing  date  on  the day  of , 

which  was  executed  by  him,  and  attested  according  to  law, 
and  thereby  gave  and  devised  unto  the  said  J.  W.,  his  heirs 
and  assigns  forever,  to  and  for  his  and  their  own  absolute  use 
and  benefit,  the  said  hereditaments  and  premises  in  question 
in  the  said  cause  (to  which  the  plaintiff  claims  to  be  entitled 
as  purchaser  thereof  from  the  said  J.  W.). 

And  the  plaintiff  further  shows  unto  your  honors  that  since 
the  said  decree  of  reversal  was  so  made,  signed,  and  enrolled, 

as  aforesaid,  and  on  or  about  ,  the  said  C.  D.  departed 

this  life  intestate,  leaving  G.  H.,  of,  etc.  the  defendant  herein 
his  heir  at  law,  who,  as  such,  claims  to  be  entitled  to  the 
said  hereditaments  and  premises,  in  exclusion  of  the  plain- 
tiff. And  the  plaintiff  is  advised 'and  insists  that,  under  the 
aforesaid  circumstances,  the  said  last-mentioned  decree,  in 
consequence  of  the  discovery  of  such  new  matter  as  aforesaid, 
ought  to  be  reviewed  and  reversed;  and  that  the  first  decree 
declaring  the  plaintiff  entitled  to  the  said  hereditaments  and 
premises  should  stand,  and  be  etablished  and  confirmed;  and 
for  effectuating  the  same,  the  said  several  proceedings,  which 


BILLS   NOT   ORIGINAL.  I37 

"became  abated  by  the  death  of  the  said  C.  D.,  should  stand  and 
be  revived  against  the  said  G.  H.,  as  his  heir  at  law. 

To  the  end,  therefore,  etc.  \^See  No.  74.]  And  that  the 
said  suit  may  be  revived  against  the  said  G.  H,,  or  that  he 
may  show  good  cause  to  the  contrary,  and  that  the  said  last 
decree,  and  all  proceedings  thereon,  may  be  reviewed  and  re- 
versed, and  that  the  said  first-mentioned  decree  may  stand 
and  be  etablished  and  confirmed,  and  be  added  to,  by  the  said 
will  being  declared  a  good  and  effectual  devise  of  such  hered- 
itaments and  premises  as  aforesaid;  and  that  the  said  G.  H. 
may  be  decreed  to  put  the  plaintiff  into  possession  of  the 
said  hereditaments  and  premises,  and  in  the  same  situation, 
in  every  respect,  as  far  as  circumstances  will  now  permit,  as 
the  plaintiff  would  have  been  in  case  such  last  decree  had 
never  been  pronounced  and  executed ;  and  that  the  plaintiff 
may  have  such  other,  etc.     May  it  please,  etc. 

[^Pray  subpoena  to  revive  and  answer  against  the  said  G.  H^ 

See  notes  to  No,  115. 


No.  120. 

To  Suspend  a  Decree. 

[Caption^  address^  and  introduction^ 

That  your  orator  in  the  year borrowed  the    sum  of 

—  dollars   from  C.  D.,  of ,  the  defendant  herein,  and 


in  order  to  secure  to  the  said  C.  D.  the  repayment  there- 
of, with  legal  interest,  your  orator,  by  an  indenture  bear- 
ing date  the day  of  ,   in  the  year  ,  granted, 

bargained,  sold,  and  demised  unto  the  said  C.  D.,  his  execu- 
tors, administrators,  and  assigns,  all  that  [describe  premises^ 
for  the  term  of  one  thousand  years,  subject  to  redemption  on 

payment  by  your  orator  of  the  said  sum  of dollars  and 

interest,  as  therein  mentioned,  as  by  the  said  indenture,  refer- 
ence being  thereunto  had,  will  more  fully  appear. 

And  your  orator  further  shows  unto  your   honors  that  the 
said  C.  D.,  on  or  about ,  exhibited  his  bill  of  complaint 


138  IN   EQUITY. 

in  this  honorable  court  against  your  orator,  for  payment  of 
what  was  then  due  to  him  for  principal  and  interest  on  the 
said  security,  by  a  short  day  to  be  appointed  for  that  purpose, 
or  that  your  orator  might  be  absolutely  debarred  and  fore- 
closed from  all  right  and  equity  of  redemption  in  the  said 
mortgaged  premises ;  and  your  orator  having  put  in  his  an- 
swer thereto,  and  submitted  to  pay  what  should  appear  to  be 
due  from  him,  the  said  cause  came  on  to  be  heard  before  your 

honors  on  or  about ,  when  it  was  referred  to  R.  V.,  one 

of  the  masters  of  this  honorable  court,  to  take  an  account  of 
what  was  so  due  from  your  orator  to  the  said  C.  D.,  as  afore- 
said, and  your  orator  was  ordered  to   pay  the  same  on  the 

day  of ,  or  to  be  absolutely  foreclosed  of  all  right 

and  equity  of  redemption  in  the  said  mortgaged  premises ; 
as  by  the  said  proceedings  now  remaining  as  of  record  in  this 
honorable  court,  reference  being  thereunto  had,  will  appear. 

And  your  orator  further  shows  unto  your  honors  that  your 
orator  was  duly  prepared  to  pay  what  should  be  reported  to 
be  due  from  him ;  but  before  the  said  master  made  his  re- 
port, your  orator  was  sent  in  great  haste,  by  the  commands 
of  his  majesty,  ambassador  to  the  court  of  Paris  on  special 
and  weighty  affairs  of  state,  which  admitted  of  no  delay ; 
and  your  orator  was  therefore  unable  to  make  any  provision 
for  the  payment  of  what  should  be  so  found  due  from  him 
as  aforesaid. 

And  your  orator  further  shows  unto  your  honors  that  the 
said  master,  during  your  orator's  absence,  made  his  report, 

whereby  he  found  that  the  sum  of dollars  was  due  to 

the  said  C.  D.  for  principal  and  interest  from  your  orator,  but 
no  further  proceedings  have  since  been  taken  in  the  said 
cause.     And  your  orator  being  ready  and  willing  to  pay  the 

said  sum  of dollars  to  the  said  C.  D.,  and  all  subsequent 

interest  thereon,  is  advised,  that  on  payment  thereof,  he  is 
entitled  under  the  circumstances  aforesaid  to  have  so  much 
of  the  said  decree  as  relates  to  the  foreclosure  of  your  ora- 
tor's right  and  equity  of  redemption  in  the  said  mortgaged 


BILLS   NOT   ORIGINAL.  139 

premises  suspended,  and  on  payment  thereof,  to  have  a  re- 
conveyance of  the  said  mortgaged  premises  from  the  said  C. 
D.  for  the  remainder  of  the  term  so  granted  to  him  as  afore- 
said. To  the  end,  therefore,  etc.  SJnterrogate  to  the  foregoing 
statement^  and  particularly  the  cause  alleged  for  suspension  of 
the  decree^  And  that  the  subsequent  interest  on  the  said  sum 
of dollars,  so  reported  to  be  due  from  your  orator  as  afore- 
said to  the  present  time,  may  be  computed  by  the  direction 
of  this  honorable  court,  and  that  on  payment  of  the  said  sum 

of dollars,  and  such  interest  as  aforesaid,  the  said  decree 

of  foreclosure  may  be  suspended,  and  the  said  C.  D.  directed, 
at  the  expense  of  your  orator,  to  reconvey  the  said  mortgaged 
premises  to  your  orator,  or  as  he  shall  appoint,  freed  and 
absolutely  discharged  from  the  said  mortgage,  [And  for 
general  relief ?[  May  it  please,  etc.  \End  by  praying  sub- 
poena against  C.  D^ 


No.  121. 

To  Set  Aside  a  Decree  obtained  by  Fraud  (i). 

[Caption^  address^  and  introduction^ 

That   T.  B.,  of,  etc.,  deceased,  the  plaintiflf's  late    father, 

during  his  life,  and  on  or  about  the day  of ,  was 

seized  in  his  demesne,  as  of  fee,  of  and  in  the  real  estate 
hereinafter  particularly  described ;  and  by  indenture  of  that 
date,  made  between  the  said  T.  B.  of  the  one  part,  and  C.  D., 
of,  etc.,  the  defendant  herein,  of  the  other  part,  the  said  T. 
B.,  in  consideration  of dollars,  bargained,  sold,  and  con- 
veyed unto  the  said  C.  D.,  his  heirs  and  assigns,  all,  etc.  [de- 
scribe the  mortgaged  premises^  subject  to  redemption  on  pay- 
ment of  the  said  principal  money  and  lawful  interest  at  the 
time  therein  mentioned,  and  long  since  past;  as  by  the  said  in- 
denture, reference  being  thereto  had,  will  more  fully  appear. 

And  the  plaintiff  further  shows  that  the  said  T.B.  departed 

this  life  on  or  about ,  leaving  the  plaintiff  his  heir  at  law, 

and  only  child,  then  an  infant  under  twenty-one  years  of  age, 


140  IN   EQUITY. 

thart:  is  to  say,  of  the  age  of  seven  years  or  thereabouts,  him 
surviving. 

And  the  plaintiflf  further  shows  that  during  the  plaintiff's 

minority,  on  or  about ,  the   said  C.  D.  filed  his  bill  of 

complaint  in  this  honorable  court  against  the  plaintiff  for  a 
foreclosure  of  the  plaintiff's  right  and  equity  of  redemption 
in  the  said  mortgaged  premises;  but  the  plaintiff  was  not 
represented  in  such  bill  to  be  then  an  infant;  and  the  said  CD. 
caused  and  procured  one  L.  M.,  since  deceased,  who  acted  in 
the  management  of  the  affairs  of  the  plaintiff's  said  father, 
to  put  in  an  answer  in  the  name  of  the  plaintiff,  and  without 
ever  acquainting  the  plaintiff,  or  any  of  his  friends  or  rela- 
tions therewith  ;  in  which  said  answer  a  much  greater  sum 
was  stated  to  be  due  from  the  plaintiff,  on  the  said  mort- 
gage security,  to  the  said  CD., than  in  fact  was  really  owing 
to  him,  and  for  which  it  was  untruly  stated  that  the  said 
mortgaged  premises  were  an  insufficient  security ;  and  in  con- 
sequence of  such  answer  being  put  in,  the  said  C  D.  after- 
wards, in  conjunction  with  the  said  L.  M.,  on  or  about ,  ob- 
tained an  absolute  decree  of  foreclosure  against  the  plaintiff, 
which  the  plaintiff  has  only  lately  discovered,  and  of  which 
the  plaintiff  had  no  notice,  and  in  which  said  decree  no  day 
is  given  to  the  plaintiff,  who  was  an  infant  when  the  same  was 
pronounced,  to  show  cause  against  it  when  he  came  of  age; 
as  by  the  said  proceedings  now  remaining  as  of  record  in  this 
honorable  court,  reference  thereto  being  had,  will  more  fully 
appear. 

And  the  plaintiff  further  shows  that  the  plaintiff,  on  the 

day  of last,  attained  the  age  of  twenty-one  years, 

and  shortly  afterwards,  having  discovered  that  such  trans- 
actions had  taken  place  during  his  minority  as  aforesaid,  by 
himself  and  Jiis  agents,  represented  the  same  to  the  said  C 
D.,  and  requested  him  to  deliver  up  possession  of  the  said 
mortgaged  premises  to  the  plaintiff,  on  being  paid  the  prin- 
cipal money  and  interest,  if  any,  actually  and  fairly  due 
thereon,  which   the   plaintiff  offered,   and  has  at  all   times 


BILLS   NOT   ORIGINAL.  I4I 

been  ready  to  pay,  and  which  would  have  been  paid  by  the 
personal  representatives  of  the  said  T.  B.out  of  his  personal 
assets,  during  the  plaintiff's  minority,  had  any  application 
been  made  for  that  purpose.  And  the  plaintiflf  hoped  that 
the  said  CD.  would  not  have  insisted  on  the  said  decree  of 
foreclosure,  so  fraudulently  obtained  as  aforesaid,  but  would 
have  permitted  the  plaintiff  to  redeem  the  said  mortgaged 
premises,  as  he  ought  to  have  done.  But  now  so  it  is,  etc., 
the  said  CD., etc.,  pretends  that  the  said  decree  of  fore- 
closure was  fairly  and  properly  obtained,  and  that  a  day  was 
therein  given  to  the  plaintiff,  when  of  age,  to  show  cause 
against  the  same,  and  that  the  plaintiff  has  neglected  to  do 
so,  and  that  the  plaintiff  is  neither  entitled  to  redeem,  nor  to 
travel  into  the  said  accounts ;  whereas  the  plaintiff  charges  the 
contrary  thereof  to  be  true,  and  ^that  the  plaintiff  only  at- 
tained the  age   of  twenty-one  years  on  the  said day  of 

,  and  that  he   has  since   discovered  the  several  matters 

aforesaid,  by  searching  in  the  proper  offices  of  this  honorable 
court;  and  the  plaintiff  expressly  charges  that,  under  the 
circumstances  aforesaid,  the  said  decree,  so  fraudulently 
obtained,  as  heretofore  mentioned,  ought  to  be  set  aside,  and 
the  plaintiff  ought  not  to  be  precluded  thereby,  or  in  any 
other  manner,  from  redeeming  the  said  mortgaged  premises^ 
of  which  the  said  C  D,  has  possessed  himself,  by  such  means 
as  aforesaid.  All  which  actings,  etc.  In  consideration 
whereof,  etc.  To  the  end,  etc.;  and  that  the  said  decree  of 
foreclosure  may,  for  the  reasons  and  under  the  circumstances 
aforesaid,  be  set  aside  by  this  honorable  court,  and  declared 
to  be  fraudulent  and  void;  and  that  an  account  may  be 
taken  of  what,  if  anything,  is  now  due  to  the  said  C  D.  for 
principal  and  interest  on  the  said  mortgage;  and  that  an 
account  may  also  be  taken  of  the  rents  and  profits  of  the 
said  mortgaged  premises,  which  have,  or  without  his  willful 
default  might  have  been,  received  by  or  on  behalf  of  the 
said  CD.,  and  if  the  same  shall  appear  to  have  been  more 
than  the  principal  and  interest    due   on  the  said  mortgage, 


142  IN   EQUITY. 

then  that  the  residue  thereof  may  be  paid  over  to  the  plain- 
tiff, and  that  the  plaintiff  may  be  at  liberty  to  redeem  the 
said  mortgaged  premises,  on  payment  of  the  principal  and 
interest,  if  any,  remaining  due  on  the  said  security;  and 
that  the  said  C.  D.  may  be  decreed,  on  being  paid  such  prin- 
cipal money  and  interest,  to  deliver  up  possession  of  the 
said  mortgaged  premises,  free  from  all  encumbrances,  to  the 
plaintiff,  or  as  he  shall  appoint,  and  to  deliver  up  all  title 
deeds  and  writings  relating  thereto.  [^General  relief.']  May 
it  please,  etc.     [Prayer  for  subpoena  against  C.  Z>.,  etc.'] 

(i)  See  Beach's  Modem  Eq.  Prac,  Sec.  884,  and  cases  cited. 


DEMURRERS.  I43 


DEMURRERS. 

No.  122. 

Title  and  Commencement. 

[Caption^ 

The  demurrer  of  A.  B.,  attorney  {or,  solicitor]  general,  or 
of  C.  D.,  Esq.,  attorney  [or,  solicitor]  general  of  the  state  of 

,  or  of  the  mayor  and  aldermen  of  the  city  of  E. ;  or  of 

F.  G.,  an  infant  under  the  age  of  twenty-one  years,  by  H.  I., 
his  guardian,  or  of  M.  N.  and  O.,  his  wife ;  or  of  P.,  the  wife 
of  R.  S.,  who  has  fully  obtained  an  order  of  this  honorable 
court  for  liberty  to  defend  separately  from  her  said  husband, 
or  of  T.,  the  wife  of  V.  Y.,  defendants,  to  the  bill  of  complaint 
of  Z.  X.,  complainant. 


No.  123. 

Another  Form. 

[Caption^] 

The  demurrer  of  C.  D.,  defendant,  to  the  bill  of  complaint 
of  A.  B.,  the  above-named  plaintiff. 


No.  124. 

Another  Form. 

[Caption^ 

The  demurrer  of  John  Jones  (in  the  bill  by  mistake  called 
William  Jones),  the  above-named  defendant  [or,  one  of  the 
above-named  defendants],  to  the  bill  of  complaint  of  A.  B., 
the  above-named  plaintiflf. 


144  ^^    EQUITY. 

No.  125. 

Another  Form. 

[Caption.'] 

The  joint  and  several  demurrer  of  A.  B.  and  C.  D.,  the  [oVy 
two  of  the]  above-named  defendants,  to  the  bill  of  complaint 
of  A.  B.,  the  above-named  plaintiflf. 


No.  126. 

Another  Form. 

[Cap  Hon. 1 

The  joint  demurrer  of  A.  B.  and  C,  his  wife,  the  [<9r,  two  of 
the]  above-named  defendants,  to  the  bill  of  complaint  of 
A.  B.,  the  above-named  plaintiff.  [Or,  if  they  have  married 
since  she  was  made  a  defendant.,  say:]  The  joint  demurrer  of 
A.  B.  and  C,  his  wife,  lately  and  in  the  bill  called  C.  D., 
spinster  [or,  widow],  to  the  bill  of  complaint  of  A.  B.,  the 
above-named  plaintiff. 


No.  127. 

Introduction  to  a  Demurrer  to  the  Whole  of  the  Bill. 

[Caption^ 

This  defendant  [or.,  these  defendants  respectively],  by  pro- 
testation, not  confessing  or  acknowledging  all  or  any  of  the 
matters  and  things  in  the  said  plaintiff's  bill  to  be  true, 
in  such  manner  and  form  as  the  same  are  therein  set  forth 
and  alleged,*  doth  [or.,  do,  as  the  case  may  be]  demur  thereto^ 
and  for  cause  of  demurrer,  showeth  [or.,  show]  that,  etc. 


No.  128. 

The  same  where  the  Demurrer  is  to  Part  of  the  Bill,  or 

to  the  Relief. 

[As  in  No,  12^  to  the  asterisk]  as  to  so  much  and  such  part 
of  the  bill  as  seeks  that  this  defendant  [or,  these  defendants] 


DEMURRERS.  I45 

may  answer  and  set  forth  whether,  etc.;  and  whether,  etc.; 
and  prays,  etc.  \if  relief  be  prayedy^  doth  [or,  do]  demur,  and 
for  cause  of  demurrer  showeth  [or,  show]  (i). 

(i)  A  special  demurrer  should  point  out,  specifically,  by  paragraph, 
page,  or  folio,  or  other  mode  of  reference,  the  parts  of  the  bill  to  which 
it  is  intended  to  apply.  Atwill  vs.  Ferrett,  2  Blatchf ,  39;  S.  P.,  Chi- 
cago, St.  Louis,  etc.,  R.  R.  Co.  vs.  Macomb,  2  Fed.  Rep.,  i8. 


No.  129. 

General  Words  of  Conclusion  (i)  to  a  Demurrer  to  the 
Whole  of  the   Bill, 

Wherefore  this  defendant  [<7r,  these  defendants  respectively] 
demands*  [or,  demand]  the  judgment  of  this  honorable  court, 
whether  he  shall  be  compelled  to  make  any  further  or  other 
answer  to  the  said  bill,  or  any  of  the  matters  and  things 
therein  contained,  and  prays  [or,  pray]  to  be  hence  dismissed, 
with  his  [her,  or,  their]  reasonable  costs  in  this  behalf  sus- 
tained. R.  Y., 

of  Counsel. 

(i)  A  demurrer  to  -a  bill  in  equity  should  be  certified  by  counsel 
to  be,  in  their  opinion,  well  founded  in  point  of  law  (see  No.  134), 
and  supported  by  the  afl&davit  of  the  defendant  that  it  is  not  inter- 
posed for  delay  (see  No.  133).  Secor  vs.  Singleton,  9  Fed.  Rep.,  809; 
3  McCrary,  230. 


No.  130. 

Another   Form. 

Wherefore,  and  for  divers  other  errors  and  imperfections, 
this  defendant  humbly  demands,  etc,  [as  in  No.  129,  from 
the  asterisk\. 


No.  131. 

Conclusion  where  the  Demurrer  is  to  Part  only,  or  to 
the  Relief. 

Wherefore,  and  for  divers  other  errors  and  imperfections 
appearing  in  the  said  bill,  this  defendant  [<7r,  these  defendants] 


146  IN    EQUITY. 

humbly  prays  [or,  pray]  the  judgment  f  of  this  honorable 
court,  whether  he  [she,  or,  they]  shall  be  compelled  to  make 
any  answer  to  such  part  of  the  said  bill  as  is  so  demurred 
unto  as  aforesaid.  R.  Y., 

of  Counsel  for  Defendant. 


No.  132. 

Another  Form. 

And,  therefore,  and  for  other  good  causes  of  demurrer  in  the 
said  bill  contained,  as  to  so  much  of  the  said  complainant's 
bill  as  is  demurred  unto  as  aforesaid,  this  defendant  [or,  these 
defendants]  doth  [or,  do]  demand  the  judgment,  etc.  [as  in 
No.  iTfiifrom  f]. 

No.  133. 

Verification  of  Demurrer  or  Plea  (i). 

State  of , 

County  of ,  ss. 

C.  D.  makes  solemn  oath  and  says  that  he  is  the  [president, 
or  other  officer,  as  may  be,  of  the  above-named  corporation], 
defendant,  and  that  the  foregoing  demurrer  [or,  plea]  is  not 
interposed  for  delay  [and  if  plea,  that  the  same  is  true  in  point 
of  fact].  C.  D. 

Sworn  to  and  subscribed  before  me  this day  of , 

1894.  J.  N., 

Notary  Public  in  and  for County. 

(i)  See  31st  Rule  in  Equity. 

No.  134. 

Certificate  of  Counsel  (i). 

I  hereby  certify  that  in  my  opinion  the  foregoing  demurrer 
\or,  plea]  is  well  founded  in  point  of  law.  R.  Y., 

of  Counsel  for  Defendant, 
(i)  See  31st  Rule  in  Equity. 


DEMURRERS.  147 

No.  135. 
Demurrer  to  Part  of  Bill  only  (i). 

[  Title  and  commencement.^ 

This  defendant  \or^  these  defendants  respectively],  by  pro- 
testation, not  confessing  or  acknowledging  all  or  any  of  the 
matters  and  things  in  the  said  plaintiff's  bill  to  be  true,  in 
such  manner  and  form  as  the  same  are  therein  set  forth  and 
alleged,  as  to  so  much  and  to  such  parts  of  the  said  bill  as 
seeks  that  this  defendant  may  answer  and  set  forth  whether, 
etc.;  and  whether,  etc.;  and  prays  \if  relief  be  prayed\  doth 
demur,  and  for  cause  of  demurrer  showeth  that  \state  causes 
of  demurrer].  Wherefore,  and  for  divers  other  errors  and 
imperfections  appearing  in  the  said  bill,  the  defendant  prays 
the  judgment  of  this  honorable  court  whether  he  shall  be 
compelled  to  make  any  answer  to  such  part  of  the  said  bill 
as  is  so  demurred  unto  as  aforesaid,  and  prays  to  be  hence 
dismissed  with  his  reasonable  costs  in  this  behalf  sustained. 

Y.  &  Y., 
Solicitors  for  Defendant. 
R.  Y., 
of  Counsel. 

(i)  There  must  be  an  affidavit  and  certificate  of  counsel.  See  31st 
Rule  in  Equity. 

For  forms  of  Affidavit  and  Certificate,  see  No.  133  and  No.  134. 


No.  136. 

General  Demurrer  for  Want  of  Equity  (i). 

\Captioni\ 
The  demurrer  of  C.  D.,  defendant,  to  the  bill  of  complaint 
of  A.  B.,  plaintiff. 

This  defendant  \or^  these  defendants  respectively],  by  pro- 
testation, not  confessing  or  acknowledging  all  or  any  of  the 
matters  and  things  in  the  said  plaintiff's  bill  to  be  true,  in 
such  manner  and  form  as  the  same  are  therein  set  forth  and 
alleged,  doth  [or^  do]  demur  thereto,  and  for  cause  of  demur- 


148  IN   EQUITY. 

rer  showeth  [or,  show]  that  the  said  plaintiff  has  not,  in  and 
by  said  bill,  made  or  stated  such  a  cause  as  doth  or  ought  to 
entitle  him  to  any  such  discovery  or  relief  as  is  thereby 
sought  and  prayed  for,  from  or  against  this  defendant  [or, 
these  defendants] ;  wherefore  this  defendant  [or,  these  defend- 
ants] demand  the  judgment  of  this  honorable  court  whether 
he  shall  be  compelled  to  make  any  further  or  other  answer 
to  the  said  bill  or  any  of  the  matters  and  things  therein 
contained,  and  prays  to  be  hence  dismissed  with  his  reason- 
able costs  in  this  behalf  sustained.  R.  Y., 

Solicitor  for  Defendant. 
(i)  See  note  to  No.  135. 

No.  137. 

Demurrer  Omitting  Several  Grounds. 

[Cap^wn.^ 
The  demurrer  of  the  above-named  defendant,  C.  D.,  to  the 
bill  of  complaint  of  the  above-named  plaintiff. 

This  defendant,  by  protestation,  not  confessing  or  acknowl- 
edging all  or  any  of  the  matters  or  things  in  the  said  bill  of 
complaint  contained  to  be  true  in  such  manner  and  form  as 
the  same  are  herein  set  forth  and  alleged,  demurs  to  the 
said  bill.     And  for  causes  of  demurrer  shows, 

I.  That  it  appears  by  the  plaintiff's  own  showing  by 
the  said  bill  that  he  is  not  entitled  to  the  relief  prayed  by 
the  bill  against  this  defendant. 

II.  That  it  appears  by  the  said  bill  that  there  are  divers 
other  persons  who  are  necessary  parties  to  the  said  bill,  but 
who  are  not  made  parties  thereto.  And  in  particular  it  ap- 
pears that  the  said  C.  D,  has  been  duly  adjudicated  a  bank- 
rupt, and  that  S.  M.  has  been  duly  appointed  assignee  of  his 
estate,  and  that  it  appears  by  the  said  bill  that  said  S.  M.,  as 
assignee,  as  aforesaid,  is  a  necessary  party  to  the  said  bill ;  but 
that  said  S.  M.  is  not  made  a  party  thereto. 

III.  That  the  said  bill  is  exhibited  against  these  defend- 
ants, and  against  several  other  defendants  to  the  said  bill, 


DEMURRERS.  I49 

for  several  and  distinct  and  independent  matters  and  causes 
which  have  no  relation  to  each  other,  and  in  which,  or,  in 
the  greater  part  of  which,  this  defendant  is  in  no  way  inter- 
ested or  concerned,  and  ought  not  to  be  implicated. 

Wherefore,  and  for  divers  other  good  causes  of  demurrer 
appearing  on  the  said  bill,  this  defendant  demurs  thereto.. 
And  he  prays  the  judgment  of  this  honorable  court  whether 
he  shall  be  compelled  to  make  any  answer  to  the  said  bill ; 
and  he  humbly  prays  to  be  hence  dismissed  with  his  reason- 
able costs  in  this  behalf  sustained.  R.  X., 

Solicitor  and  of  Counsel  for  Defendant. 

See  note  to  No.  135. 


No.  138. 

Demurrer  and  Answer  (i). 

\Captio7i\. 
The  joint  and  several  demurrer  of  C.  D.  and  E.  F.  to  pari, 
and  the  joint  and  several  answer  of  the  same  defendants 
to  the  residue,  of  the  original  bill  of  complaint  of  A.  B. 
and  S.  B.,  plaintiffs. 

These  defendants,  to  so  much  of  the  plaintiffs'  bill  as  prays 
that  they  may  be  decreed  to  transfer  to  the  said  plaintiffs,  as 
the  executors  of  M.  L.  in  the  said  bill  mentioned,  the  2i-64th 

shares  of  the  ship  called ,  in  the  said  bill  mentioned,  and 

that  the  said  defendant  C.  D.  may  be  decreed  to  transfer  to 
the  pk-intiffs  the  2i--64th  shares  of  the  brig  or  vessel  called 

,  in  the  said  bill  mentioned,  and  to  so  much  of  the  said 

bill  as  prays  that  an  account  may  be  decreed  to  be  taken  of 
all  the  dealings  and  transactions  between  these  defendants 
and  the  said  M.  L.,  with  respect  or  in  relation  to  the  said  two 
vessels,  and  of  all  sums  of  money  respectively  received  and 
paid  by  these  defendants  and  the  said  M.  L.,  respectively,  or 
by  any  other  person  by  their  or  any  of  their  respective  order, 
or  for  their  or  any  of  their  use,  and  that  these -defendants 
should  be  decreed  to  pay  what  should  be  found  due  thereon, 


150  IN    EQUITY. 

SO  far  as  such  dealings  and  transactions  and  sums  of  money, 
or  any  or  either  of  them,  relate  to  or  concern  the  said  21- 

64th  shares  of  the  said  vessel  called ,  or  the  said  21 -64th 

shares  of  the    said  vessel  called  ,  and  the  freights  or 

freight,  or  any  shares  or  share  of  the  freights  or  freight,  of 
such  vessels  or  either  of  them,  and  to  so  much  of  the  said 
bill  as  prays  further  or  other  relief  with  respect  or  in  relation 
to  the  said  shares  of  the  said  two  vessels  respectively  or  the 
freight  thereof  respectively. 

\_Cause  0/  demurrer.']  These  defendants  do  demur,  and  for 
cause  of  demurrer  show  that  the  said  plaintiffs  have  not 
made  or  stated  such  a  case  as  entitles  them  in  a  court  of 
equity  to  the  relief  so  prayed  for,  or  any  part  thereof;  and 
these  defendants  humbly  pray  the  judgment  of  the  court  as 
to  such  parts  of  the  bill  as  they  have  so  demurred  to  as  afore- 
said. 

\_Answer  to  residue  of  bill.]  And  as  to  the  residue  of  the 
said  bill,  that  is  to  say,  all  the  discovery,  and  the  rest  of  the 
relief,  by  the  said  bill  prayed,  these  defendants  for  answer 
thereto  severally  say,  they  admit  it  to  be  true  that  Messrs. 
G.  &  S.  were,  in  the  month  of,  etc.,  engaged  in  building  at 
Liverpool,  on  their  own  account,  a  certain  brig  or  vessel,  and 

that  in  the  month  of ,  these  defendants  C.  D.  and  B.  F. 

did  carry  on  business  together  in  partnership  as  wine  mer- 
chants and  general  dealers  [continue  with  answer]. 

(i)  See  note  to  No.  135. 

No.  139. 

General  Form  of  Demurrer,  Plea,  and  Answer  (i). 

[Caption^ 

The  demurrer,  plea,  and  answer  of  C.  D.,  the  above-named 

defendant  \or^  one  of  the  above-named  defendants]  to 

the  bill  of  complaint  [or^  amended  bill  of  complaint]  of 

the  above-named  plaintiff. 

(i.)     Demurrer.     I,  the  defendant  C.  D.,  by  protestation, 

not  confessing  or  acknowledging  all  or  any  of  the  matters 


DEMURRERS.  I5I 

and  things  in  the  said  bill  contained  to  be  true,  in  such  man- 
ner and  form  as  the  same  are  therein  set  forth  and  alleged, 
as  to  so  much  of  the  said  bill  as  seeks  \state  whai\  and  also 
as  to  so  much  of  the  said  bill  as  seeks  [state  what\  do  demur 
thereto. 

And  as  to  the  discovery  and  relief  sought  by  the  said  bill, 
save  so  much  thereof  as  relates  to  the  premises  therein  men- 
tioned to  be  situate  at  S.,  in  the  county  of ,  for  cause  of 

demurrer  I  show  that  [state  ■what\. 

And  as  to  so  much  of  the  said  discovery  and  relief  as  relates 
to  the  said  premises  at  S.,  aforesaid,  for  cause  of  demurrer  I 
show  that  [state  what\. 

Wherefore  and  for  divers  other  good  causes  of  demurrer 
appearing  in  the  said  bill,  I  pray  the  judgment  of  this  honor- 
able court  whether  I  shall  be  compelled  to  make  any  answer 
to  such  parts  of  the  said  bill  as  I  have  hereinbefore  demurred 
to. 

(2.)  Plea.  And  I,  the  defendant  C.  D.,  not  waiving  my 
said  several  demurrers,  but  wholly  relying  thereon,  as  to  so 
much  of  the  said  bill  as  seeks  [state  what\  and  also  as  to  so 
much  of  the  said  bill  as  seeks  [state  what\  do  plead  thereto ; 
and  for  plea  say  that  [state  what'] ;  and  I  do  aver  that  [state 
what]. 

All  which  last-mentioned  matters  and  things  I  do  plead  in 
bar  to  so  much  of  the  said  bill  as  is  hereinbefore  pleaded  to ; 
and  I  humbly  pray  judgment  of  this  honorable  court  whether 
I  ought  to  make  any  further  answer  to  so  much  of  the  said 
bill  as  is  hereinbefore  pleaded  to. 

(3.)  Answer.  And  I,  the  defendant  C.  D.,  not  waiving 
my  said  several  demurrers  and  plea,  but  wholly  relying  and 
insisting  thereon,  for  answer  to  so  much  of  the  said  bill  as  I 
am  advised  it  is  material  or  necessary  for  me  to  make  answer 
unto,  say  as  follows  [cotttinue  with  answer]  (2). 

(i)  See  Beach's  Modem  Eq.  Prac,  Sec.  241. 

Where  a  demurrer  is  interposed  the  bill  is  to  be  taken  as  true.  Tay- 
lor vs.  Bradshaw,  17  Am.  Dec,  132.     A  general  demurrer  admits  all 


152  IN    EQUITY. 

well-pleaded  allegations  of  a  bill.     Smith  vs.  Allen,  21  Am.  Dec,  33.   A 
demurrer  is,  in  a  legal  sense,  an  answer  to  the  bill,  though  not  an 
answer  as  that  term  is  used  in  the  common  language  of  practice.    New 
Jersey  vs.  New  York,  6  Peters,  323. 
(2)  See  note  to  No.  135. 


No.  140. 

Demurrer   for    Want  of  a  Suggestion  that   the    Evidence 
of  the  Plaintiffs  Demand  is  Not  in  his  Power  (i). 

\_Tttle.,  commencement.,  and  introduction^ 

As  to  so  much  and  such  part  of  the  said  plaintiff's  bill 

as  prays  relief,  in  respect  of  the  bond  bearing  date ,  for 

the  sum  of  twenty  thousand  dollars  in  the  said  bill,  stated 
to  have  been  made  and  entered  into,  for  the  payment  of  ten 

thousand  dollars  and  interest  on  the day  of last, 

by  this  defendant,  or  the  money  alleged,  by  the  said  bill,  to 
be  now  due  to  the  said  plaintiflf  from  this  defendant  there- 
on, this  defendant  demurs,  and  for  cause  of  demurrer  shows 
that  the  said  bond  appears  by  the  said  bill  to  have  been 
taken  by  the  said  plaintiff,  in  his  own  name,  and  to  be  now 
in  the  possession,  custody,  or  power  of  the  said  plaintiff, 
who  therefore  has  a  remedy  for  his  demand  at  law.  Where- 
fore, etc.     \See  No.  130.] 

(i)    See  note  to  No.  135. 


No.  141. 

Demurrer  to  a  Bill  for  Relief  Filed  by  a  Person  Benefi- 
cially Entitled  where  a  Right  of  Action  at  Law  was 
in  a  Trustee  Suggesting  a  Refusal  by  the  Trustee  to 
Suffer   an   Action   to  be  Brought  in  his  Name  (i). 

[7?'//^,  cotnmencement.,  and  introduction.^ 

As  to  so  much  and  such  part  of  the  said  bill  as  seeks  to 
compel  these  defendants  to  pay  the  sum  of  five  thousand 
dollars,  or  to  make  the  said  plaintiffs  satisfaction  for  any 
loss  that  has  happened  to  the  said  ship,  these  defendants 


DEMURRERS.  1 53 

respectively  demur;  and  for  cause  of  demurrer  show  that  if 
the  policy  of  the  insurance  in  the  said  bill  mentioned  was 
forfeited,  a  proper  action  at  law  did  and  would  lie  to  recover 
the  money  due  thereon,  and  if  the  said  plaintiffs  be  entitled 
to  any  such  relief  as  aforesaid,  as  prayed  in  and  by  their  said 
bill,  they  might  have  a  complete  and  adequate  remedy  by 
an  action  at  law,  where  they  ought  and  would  be  put  to 
prove  their  interest  in,  and  the  loss  of,  the  said  ship.  Where- 
fore, etc.     l^See  No.  130.] 

(i)  See  note  to  No.  135. 

No.  142. 

Demurrer  for  ^A/'ant  of  Parties  (i). 

[^Tzi/e,  commencement^  and  introduction^ 

That  it  appears  by  the  said  plaintiff's  said  bill  that  S.  B., 
therein  named,  is  a  necessary  party  to  the  said  bill,  inas- 
much as  it  is  therein  stated  that  C.  D.,  the  testator  in  the 
said  bill  named,  did  in  his  lifetime,  by  certain  conveyances 
made  to  the  said  S.  B.,  in  consMeration  of dollars,  con- 
vey to  him,  by  way  of  mortgage,  certain  estates  in  the  said 
bill  particularly  mentioned  and  described,  for  the  purpose  of 
paying  the  said  testator's  debts  and  legacies;  but  the  said 
plaintiff  has  not  made  the  said  S.  B.  a  party  to  the  said  bill. 
Wherefore,  etc.     \See  No.  130.] 

(1)  A  demurrer  to  a  bill  for  want  of  the  necessary  parties  must 
name  the  proper  parties.  Dwight  vs.  Central  Vt.  R.  Co.,  9  Fed.  Rep., 
785  ;  20  Blatchf.  200. 

See  note  to  No.  135. 


No.  143. 

Demurrer  for  Multifariousness  (i). 

\Title^  commencement.,  and  introduction.'] 
That  it  appears  by  the  said  bill  that  the  same  is  exhibited 
by  the  said  plaintiff  against  this  defendant,  and  C.  D.,  E.  P., 


154  ^^    EQUITY. 

and  G.  H.,  as  defendants  thereto,  for  several  distinct  matters 
and  causes,  in  many  whereof,  as  appears  by  the  said  bill,  this 
defendant  is  in  no  way  interested ;  and,  by  reason  of  such 
distinct  matters,  the  said  bill  is  drawn  out  to  a  considerable 
length,  and  this  defendant  is  compelled  to  take  a  copy  of  the 
whole  thereof;  and  by  joining  distinct  matters  together, 
which  do  not  depend  on  each  other,  the  proceedings  in  the 
progress  of  the  said  suit  will  be  intricate  and  prolix,  and 
this  defendant  put  to  unnecessary  charges  and  expenses  in 
matters  which  in  no  way  relate  to  or  concern  him.  Where- 
fore, etc.     l^See  No.  130.] 

(i)  See  Beach's  Modern  Eq.  Prac,  Sec.  262.  There  is  no  definite 
rule  as  to  what  constitutes  multifariousness  in  a  pleading  in  chancery. 
Each  case  must  depend  upon  its  own  circumstances,  and  much  must 
be  left  to  the  sound  discretion  of  the  court.  Gaines  vs.  Chew,  2  How., 
619,  642  ;  and  note  to  Banks'  ed.  S.  P.,  Oliver  vs.  Piatt,  3  How.,  333 
(411);  afl&rming,  3  McLean,  27;  McLean  z/j.  Lafayette  Bank,  3  Mc- 
Lean, 415. 

The  objection  of  multifariousness  can  not  be  insisted  upon  by  the 
defendant  as  a  matter  of  right  at  the  hearing.  It  must  be  taken  ad- 
vantage of  by  the  plea,  answer,  or  demurrer.  And  although  the  court 
may  take  notice  of  it,  at  any  time,  sua  sponte,  this  will  not  be  done  at 
so  late  a  period  as  the  hearing,  unless  it  is  essential  to  the  due  admin- 
istration of  justice.  An  appellate  court,  a  fortiori,  would  not  enter- 
tain it,  unless  forced  to  do  so  by  a  moral  necessity,  Oliver  vs.  Piatt, 
3  How.,  333  (412);  affirming,  3  McLean,  27  ;  Nelson  vs.  Hill,  5  How., 
127;  and  note  to  Banks'  ed. 

A  bill  is  subject  to  demurrer  (or  multifariousness  if  one  of  the  two 
complainants  has  no  standing  in  court,  or  they  set  up  antagonistic 
causes  of  action,  or  the  relief  for  which  they  respectively  pray  in 
regard  to  a  portion  of  the  property  sought  to  be  reached  involves 
totally  distinct  questions,  requiring  different  evidence,  and  leading  to 
different  decrees.  Walker  vs.  Powers,  104,  U.  S.  245.  But  it  is  not 
multifarious  simply  because  it  prays  for  different  modes  of  relief 
against  one  injury  (Wells  vs.  Bridgeport,  etc.,  Co.,  79  Am.  Dec,  250 ; 
Way  vs.  Bragaw,  84  Am.  Dec,  147) ;  or  where  the  joinder  therein  of 
two  distinct  matters  prevents  a  needless  multiplicity  of  suits,  and 
neither  inconveniences  the  defendants  nor  causes  them  additional 
expense  (Stafford  Nat.  Bank  vs.  Sprague,  8  Fed.  Rep.;  377  ;  19  Blatchf 
529) ;  or  where  all  the  matters  in  controversy  are  between  the  same 


DEMURRERS.  I55 

parties,  arise  out  of  the  same  transaction,  from  breaches  of  the  same 
instrument,  and  can  be  settled  in  one  suit.  Pacific  R.  R.  Co.  vs.  At- 
lantic &  Pacific  R.  R.  Co.,  20  Fed.  Rep.,  277. 

So,  also,  a  bill  which  embraces  the  distinct  claims  of  several  parties 
is  not  open  to  the  objection  of  multifariousness  if  the  interests  of  all 
are  so  mingled  in  a  series  of  complicated  transactions  that  entire  jus- 
tice could  not  be  conveniently  obtained  in  separate  and  independent 
suits  (Oliver  vs.  Piatt,  3  How.,  333  (41 1) ;  affirming,  3  McLean,  27);  as 
where  it  joins  defendants  holding  distinct  tracts  of  land  under  distinct 
conveyances,  if  the  main  ground  of  defense  is  common  to  all  of  the 
defendants.  Gaines  vs.  Mausseaux,  i  Woods,  118.  See.  also,  Shields 
vs.  Thomas,  18  How..  253 ;  Turner  vs.  American  Baptist  Missionary 
Union,  5  McLean,  344. 

See  also  note  to  No.  135. 


No.  144. 
Demurrer  to  a  Bill  Brought  for  Part  of  a  Matter  only(i). 

\^Tiil€y  commencement.,  and  introduction.'] 

That  the  said  plaintifif,  by  his  said  bill,  in  order  to  split 
the  cause,  and  create  a  multiplicity  of  suits,  seeks  only  to 
recover  a  part  of  an  entire  debt,  thereby  stated  to  be  due  to 
him  from  this  defendant ;  and  in  respect  of  other  parts  of 
the  said  debt  has,  as  appears  by  his  said  bill,  filed  two  several 
other  bills  of  complaint  in  this  honorable  court  against  this 
defendant.     Wherefore,  etc.     \^See  No.  130.] 

(i)  See  note  to  No.  135. 


No.  145. 

Demurrer  to  a  Bill  of  Interpleader,  Because  it  Does  not 
Show  any  Claim  of  Right  in  the  Defendant   (i). 

[ZiV/i^,  commencement^  and  introduction^ 

For  that  the  said  plaintiff  has  not  in  and  by  his  said  bill 
of  interpleader  shown  any  claim,  or  right,  title,  or  interest 
whatsoever,  in  this  defendant  in  or  to  the  said  estate  called  A., 
in  the  said  bill  particularly  mentioned  and  described,  in  re- 
spect whereof  this  defendant  ought  to  be  compelled  to  inter- 
plead with  C.  D.  in  the  said  bill  named,  and  the  other  de- 
fendant thereto.     Wherefore,  etc.     [See  No.  130.J 

(i)  See  note  to  No.  135. 


156  IN   EQUITY.         • 

No.  146. 

Demurrer  to  a  Bill  of  Interpleader,  Because  the  Plaintiff 
Shows  no  Right  to  Compel  the  Defendants  ("Whatso- 
ever Rights  they  may  Claim)  to  Interplead  (i). 

\Title^  commencement^  and  introduction^ 

That  the  said  plaintiff  has  not,  in  and  by  his  said  bill, 
shown  any  right  and  title  whatsoever  to  compel  this  defend- 
ant, and  A.  B.,  the  other  said  defendant  to  the  said  bill,  to 
interplead.     Wherefore,  etc.     \See  No.  130.] 

(i)  See  note  to  No.  135. 


No.  147. 

Demurrer  to  a  Bill  of  Interpleader,  for  Want  of  the 
Necessary  Affidavit  (i). 

\Title^  commencement^  and  introduction^ 

That  although  the'  said  plaintiff's  said  bill  is  on  the  face 
thereof  a  bill  of  interpleader,  and  prays  that  this  defendant 
and  the  other  defendants  thereto  may  interplead  together 
concerning  the  matters  therein  mentioned,  and  may  be 
restrained,  by  the  order  and  injunction  of  this  honorable 
court,  from  proceeding  at  law  against  the  said  plaintiff, 
touching-  such  matters,  yet  the  said  plaintiff  has  not  an- 
nexed an  affidavit  to  his  said  bill,  that  he  does  not  collude 
concerning  such  matters,  or  any  of  them,  with  this  defendant 
and  the  other  defendants  thereto,  or  any  or  either  of  them, 
which  affidavit  ought,  as  this  defendant  is  advised,  according 
to  the  rules  of  this  honorable  court,  to  have  been  made  by 
the  said  plaintiff,  and  annexed  to  the  said  bill.  Wherefore, 
etc.     \Sce  No.  130.] 

(i)  See  note  to  No.  135. 


DEMURRERS.  157 

No.  148. 

Demurrer  to  a  Bill  Exhibited  by  an  Infant,  where  no 
Next  Friend  is  Named  (i). 

[^Title^  commencement^  and  introduction^ 

That  the  said  plaintiff,  who  appears  by  the  said  bill  to 
be  an  infant  under  the  age  of  twenty-one  years,  has  exhib- 
ited his  said  bill  without  any  person  being  therein  named  as 
his  next  friend.     Wherefore,  etc.     \See  No.  130.] 

(i)  See  note  to  No.  135. 

No.  149. 

Demurrer  to  a  Bill  where  the  Plaintiff  Claimed  Under  a 
Will,  and  it  was  Apparent  on  the  Face  of  the  Bill 
that  he  had  no  Title  (i). 

\Title^  commencement^  and  introduction!] 

That  the  said  plaintiff  has  not,  as  appears  by  his  said  bill, 
made  out  any  title  to  the  relief  thereby  prayed.  Wherefore, 
etc.     [See  No.  130.] 

(i^  See  note  to  No.  135. 


No.  150. 

Demurrer  on  the  Ground  of  the  Statute  of  Frauds  (i). 

\Title^  commencement^  and  introduction^ 

That  it  appears  by  the  said  bill  that  neither  the  promise 
or  contract  which  is  alleged  by  the  said  bill,  and  of  which 
the  plaintiff  by  the  said  bill  seeks  to  have  the  benefit,  nor 
any  memorandum  or  note  thereof,  was  ever  reduced  into 
writing  or  signed  by  this  defendant  [^r,  these  defendants  or 
either  or  any  of  them],  or  any  person  authorized  thereunto, 

within  the  meaning  of  the   statute,  viz.:    section  of 

chapter ,  of  the  General  Statutes  (2)  of  the  State  of , 

for  the  prevention  of  frauds  and  perjuries, 

(i)  See  Beach's  Modern  Eq.  Prac,  Sec.  260. 

(2)  State  the  chapter  and  section  relating  to   frauds  and  known   as 
the  Statute  of  Frauds. 
See  note  to  No.  135. 


158  IN   EQUITY. 

No.  151. 

Demurrer  to  Supplemental  Bill  (i). 

[Caption^ 
The  demurrer  of  C.  D.,  defendant,  to  the  supplemental  bill 
of  A.  B.,  plaintiff. 

This  defendant  [as  in  No.  127],  that  this  defendant,  as  ap- 
pears by  the  said  supplemental  bill,  is  not  a  party  to  the 
original  bill  therein  in  part  stated  and  set  forth ;  nor  does  it 
appear  by  the  said  supplemental  bill  that  any  new  matter 
h:is  or  is  pretended  to  have  arisen  since  the  said  original  bill 
was  filed,  or  that  there  is  any  reason  why  this  defendant 
should  not,  if  necessary,  be  made  a  party  thereto  by  amend- 
ment.    Wherefore,  etc.  [conclude  as  in  No.  129]. 

(i)  See  note  to  No.  135. 

No.  152. 

Demurrer  to  a  Bill  of  Review  and  Supplemental  Bill  (i). 

[Caption']. 

These  defendants,  by  protestation,  etc.  [as  in  No.  127], 
do  demur  in  law  thereto,  and  for  cause  of  demurrer  show 
that  there  are  no  errors  in  the  record  and  premises,  and  in 

the  decree  of  the day  of ,  in  the  said  bill  of  review 

and  supplemental  bill  mentioned,  nor  is  there  any  sufficient 
matter  alleged  in  the  said  bill  of  review  and  supplemental 
bill  to  entitle  the  said  plaintiff  to  reverse  the  said  decree; 
and  for  divers  other  defects  and  errors  appearing  in  the  said 
bill  of  review  and  supplemental  bill,  these  defendants  do  de- 
mur in  law  thereto ;  and  these  defendants,  for  further  cause 
of  demurrer,  humbly  show  that,  under  the  rules  of  this  hon- 
orable court,  no  supplemental  or  new  bill  in  the  nature  of 
a  bill  of  review,  grounded  upon  any  new  matter  discovered 
or  pretended  to  be  discovered  since  the  pronouncing  of  any 
decree  of  this  court,  in  order  to  the  reversing  or  varying  of 
such  decree,  shall  be  exhibited  without  the  special  leave  of 


DEMURRERS.  159 

the  court  first  obtained  for  that  purpose;  wherefore,  and  for 
that  the  said  plaintiff  does  not  allege  by  the  said  bill  of  re- 
view and  supplemental  or  new  bill  that  he  had  first  obtained 
leave  of  this  court  for  exhibiting  the  said  bill  of  review  and 
supplemental  or  new  bill,  these  defendants  demur  in  law 
thereto,  and  humbly  pray  the  judgment  of  the  court  whether 
they  ought  to  be  compelled  to  put  in  any  further  or  other 
answer  to  the  said  plaintiff's  said  bill  of  review  and  supple- 
mental or  new  bill,  and  humbly  pray  to  be.  hence  dismissed 
with  their  reasonable  costs  in  this  behalf  most  wrongfully 
sustained.  R.  Y., 

Counsel  for  Defendant, 
(i)  See  note  to  No.  135. 


No.  153. 

Demurrer  to  Bill  of  Review  (1). 

[^Caption^ 
The  demurrer  of  C.  D.,  defendant,  to  the  bill  of  review  of 
A.  B.,  plaintiff. 

[Introduction,  as  in  No.  127.]  That  by  the  constant  rules 
of  this  court  no  bill  of  review  ought  to  be  admitted  to 
alter  or  change  'matters  decreed,  only  for  error  in  law  ap- 
pearing in  the  body  of  the  decree  as  it  is  drawn  up  and 
enrolled,  or  for  new  matter  arising  since  the  decree,  or 
such  matter  of  which  the  plaintiff  in  the  bill  of  review 
could  not  have  notice  at  the  time  of  the  decree ;  but  this 
defendant  is  advised  that  the  matters  assigned  by  the  said 
bill  of  review  for  cause  of  reversal  of  the  said  decree,  as 
the  same  thereby  appear  by  said  plaintifi"'s  bill,  are  neither 
any  error  in  law  apparent  in  the  body  of  this  decree,  nor  any 
such  new  matter  as  aforesaid,  but  a  misjudgment  in  matters 
of  form  only,  and  not  in  point  of  right;  and  that  the  state- 
ment contained  in  the  said  bill  of  review  of  the  abatement 
of  the  suit  before  the  decree  passed  is  merely  an  exception 
in  point  of  form.     Wherefore,  etc.     [See  No.  129.] 

(i)  See  note  to  No.  135. 


l6o  IN   EQUITY. 


PLEAS. 

No.  154. 

The  Title. 

[Caption.'] 

The  plea  of  C.  D.,  defendant  [<?r,  defendants],  to  tbe  bill  of 
complaint  of  A.  B.,  plaintiff.  , 


No.  155. 

The  Commencement  of  a  Plea. 

[Caption  and  title.] 

This  defendant  [<9r,  these  defendants  respectively],  by  pro- 
testation, not  confessing  or  acknowledging  all  or  any  of  the 
matters  and  things  in  the  said  plaintiff's  bill  of  complaint 
mentioned  and  contained  to  be  true,  in  such  sort,  manner, 
and  form  as  the  same  are  therein  set  forth  and  alleged,  for 
plea  to  the  whole  of  the  said  bill,  [or^  to  so  much  and  such 
part  of  the  said  bill  as  prays,  etc.,  or^  seeks  a  discovery  from 
this  defendant  (cr,  these  defendants).     Whether,  etc.] 


No.  156. 

The  Conclusion  of  a  Plea. 

All  which  matters  and  things  this  defendant  doth  aver  [<?r, 
these  defendants  do  aver]  to  be  true,  and  he  pleads  [or^  they 
plead]  the  said  [statute,  <?r,  release,  etc.,  as  the  case  may  be  {in 
bar)  ]  to  the  said  plaintiff's  bill  [cr,  if  the  plea  extend  to  part 
only.,  to  so  much  of  the  said  bill  as  hereinbefore  particularly 
mentioned],  and  prays  [<?r,  pray]  the  judgment  of  this  honor- 


PLEAS.  i6i 

able  court  whether  he  [or,  they]  should  be  compelled  [or, 
ought  to  be  required]  to  make  any  other  or  further  answer  to 
the  said  bill  [or,  to  so  much  of  the  said  bill  as  is  hereinbefore 
pleaded  to],  and  prays  [or,  pray]  to  be  hence  dismissed  with 
his  [or,  their]  costs  and  charges  in  that  behalf,  most  wrong- 
fully sustained  (i).  R.  Y., 

of  Counsel  for  Defendant. 
(i)  See  31st  Rule  in  Equity. 


No.  157: 

Verification  of  Plea. 

See  31st  Rule  in  Equity,  and  for  form  of  Affidavit  see  No. 
133- 


No.  158. 

Certificate  of  Counsel. 

See  31st  Rule  in  Equity,  and  for  form  of  Certificate  see 
No.  134. 


No.  159. 

Plea  of  Infancy  to  a  Bill  Exhibited  Without  a 
Prochein  Ami  (i). 

[  Title  and  commencement^ 

That  the  said  plaintiff,  before  and  at  the  time  of  filing  his 
said  bill  in  which  he  appears  as  the  sole  plaintifi",  was,  and 
now  is,  an  infant  under  the  age  of  twenty-one  years,  that  is  to 

say,  of  the  age  of or  thereabouts.    Therefore,  etc.    [See 

No.  161.] 

(i)  There  must  be  an  aflSdavit  and  certificate  of  counsel,  31st  Rule 
in  Equity.     For  forms  see  No.  133  and  No.  134 . 


l62  IN   EQUITY. 

No.  160. 

Plea  of  Lunacy  (i). 

[  Title  and  commencement^ 

That  the  said  plaintiff,  who  by  himself  alone  attempts  to 
sustain  an  injunction  in  this  suit,  before  and  at  the  time  of 
filing  his  said  bill,  was  duly  found  and  declared  to  be  a 
lunatic,  under  and  by  virtue  of  a  commission  of  lunacy,  duly 
awarded  and  issued  against  him,  as  by  the  inquisition  thereon 
(a  true  copy  whereof  is  now  in  this  defendant's  possession, 
and  ready  to  be  produced  to  this  honorable  court),  to  which 
this  defendant  craves  leave  to  refer,  will  more  fully  appear; 
and  which  said  commission  has  not  hitherto  been  superseded, 
and  still  remains  in  full  force  and  ejBfect;  and  the  said  A.  B. 
therein  named  and  the  said  plaintiff  is,  as  this  defendant 
avers,  one  and  the  same  person,  and  are  not  other  and 
different  persons.     Therefore,  etc.     \See  No.  i6i.] 

(i)  See  note  to  No.  159. 


No.  161. 

Plea,   that  the    Supposed   Intestate   is    Living,  to   a    Bill 
where    the    Plaintiff    Entitled    Himself   as    Admin- 
istrator (i). 

[  Title  ajtd  commencement^ 

That  A.  B,,  in  the  said  bill  named  (to  whom  the  said 
plaintiff  alleges  that  he  has  obtained  letters  of  administra- 
tion, and  by  virtue  of  which  letters  of  administration,  and 
also  under  the  pretense  of  his  being  the  heir  at  law  of  the 
said  A.  S.,  the  said  plaintiff  has  commenced  and  prosecuted 
this  suit),  was,  at  the  time  the  said  plaintiff  filed  his  said 
bill,  and  still  is,  alive  at  Paris,  in  the  kingdom  of  France. 
Therefore  this  defendant  demands  the  judgment  of  this 
honorable  court,  whether  he  shall  be  compelled  to  answer 
the  said  plaintiff's  bill;  and  humbly  prays  to  be  dismissed 
with  his  reasonable  costs  in  this  behalf  sustained. 

(I)  See  note  to  No.  159. 


PLEAS.  163 

No.  162. 

Plea  that  the  Defendant  Never  ^vas  Administrator  (i). 

[  Title  and  commencement.^ 

That  he  is  not,  nor  ever  has  been,  administrator  of  the 
goods  or  estate*  which  were  of  the  said  E.  F.,  deceased,  in 
the  said  bill  named,  as  the  said  plaintiff  in  liis  said  bill  has 
untruly  alleged.     Therefore,  etc.     [See  No.  161.] 

(i)  See  note  to  No.  159. 


No.  163. 
Plea  to  the  Jurisdiction  (i). 

[  Title  and  commencement.^ 

The  C.  D.  Co.,  the  above-named  defendant,  specially 
appearing  under  protest  for  the  purpose  of  this  plea  and  for 
no  other,  says  that  it  is  not  a  corporation  organized  under 

the  laws  of  the  state  of ,  nor  citizen  nor  inhabitant  of 

said  state  of ,  nor  does  it  reside  therein,  but  that  it  is  a 

corporation  organized  under  the  laws  of  the  state  of ,  and 

an  inhabitant  of  said  state  of ,  and  residing  at ,  in 

the district  of ,  where  its  corporate  meetings  are 

held  and  its  corporate  business  transacted. 

Wherefore,  insisting  upon  its  exemption  from  suit  in  this 

court,  it  says  that  not  this  court,  but  the court  of  the 

United  States  for  the district  of has  jurisdiction 

in  the  premises. 

The  C.  D.  Co., 
By  C.  D.,  President. 

(i)  See  Act  of  March  3,  1887,  as  amended,  25  Stat,  at  L.,  433.  The 
objection  that  the  defendant  is  not  sued  in  the  proper  district  must 
be  raised  by  plea  and  not  demurrer.  See  Beach's  Modern  Eq.  Prac, 
Sec.  302.     Consult  note  to  No.  159. 


164  IN    EQUITY. 

No.  164. 
Plea  of  Former  Suit  Depending  (i). 

[  Title  and  commencement?^ 

That  at  a  term  of  the court ,  which  was  held  in 

the  year ,  the  said  present  plaintiff  exhibited  his  bill  of 

complaint  in  this  honorable  court  against  this  defendant  and 
one  L.  Y.,  for  an  account  of  the  moneys  raised  by  the  sale  of 
the  plantations  and  other  estates  in  the  said  plaintiff's  present 
bill  mentioned,  and  claiming  such  shares  and  proportions 
thereof,  and  such  rights  and  interests  therein,  as  he  now 
claims  by  his  present  bill;  and  praying  relief  against  this 
defendant  in  the  same  manner,  and  for  the  same  matters,  and 
to  the  same  effect  as  the  said  plaintiff  now  prays  by  his  said 
present  bill ;  and  this  defendant  and  the  said  L.  Y.  appeared 
and  put  in  their  answer  to  the  said  former  bill,  and  the  said 
plaintiff  replied  thereto,  and  witnesses  were  examined  on 
both  sides,  and  their  depositions  duly  published,  and  the 
said  former  bill  and  the  several  proceedings  in  the  said 
former  cause,  as  this  defendant  avers,  now  remain  depending, 
and  as  of  record  in  this  honorable  court,  the  said  cause  being 
yet  undetermined  and  undismissed ;  all  which  several  matters 
and  things  this  defendant  doth  aver,  and  pleads  the  said 
former  bill,  answer,  and  the  several  proceedings  in  the  said 
former  suit,  in  bar  to  the  said  plaintiff's  present  bill;  and 
humbly  demands  the  judgment  of  this  honorable  court, 
whether  he  shall  be  put  to  make  any  further  or  other  answer 
thereto ;  and  prays  to  be  hence  dismissed  with  his  costs  and 
charges  in  this  behalf  sustained. 

(i)  See  note  to  No.  159. 

It  is  a  general  rule  that  a  plea  ought  not  to  contain  more  defenses 
than  one.  Various  facts  can  never  be  pleaded  in  one  plea  unless  they 
are  all  conducive  to  the  single  point  on  which  the  defendant  means  to 
rest  his  defense.     Rhode  Island  vs.  Massachusetts,  14  Peters,  210. 


PLEAS.  165 

No.  165. 
Plea  of  Stated  Account  (i). 

\^Tttle  and  commencement.^ 

As  to  so  much  and  such  parts  of  the  said  plaintiff's  bill  as 
seeks  an  account  of  and  concerning  the  dealings  and  trans- 
actions therein  alleged  to  have  taken  place  between  the  said 

plaintiff  and  this  defendant  at  any  time  before  the day 

of ,  in  the  year  ,  this  defendant  for  plea  thereto 

says,  that  on  the day  of ,  which  was  previously  to 

the  said  bill  of  complaint  being  filed,  the  said  plaintiff  and 
this  defendant  did  make  up,  state,  and  settle  an  account  in 
writing.,  a  counterpart  whereof  was  then  delivered  to  the  said 
plaintiff,  of  all  sums  of  money  which  this  defendant  had  before 
that  time,  by  the  order  and  direction,  and  for  the  use  of  the  said 
plaintiff  received,  and  of  all  matters  and  things  thereunto  relat- 
ing, or  at  any  time  before  the  said day  of ,  being 

or  depending  between  the  said  plaintiff  and  this  defendant 
(and  in  respect  whereof  the  said  plaintiffs  bill  of  complaint 
has  been  since  filed),  and  the  said  plaintiff,  after  a  strict  ex- 
amination of  the  said  account,  and  every  item  and  particular 
thereof,  which  this  defendant  avers  according  to  his  best 
knowledge  and  belief  to  be  true  and  just,  did  approve  and 
allow  the  same,  and  actually  received  from  this  defendant  the 

sum  of dollars,  the  balance  of  the  said  account,  which 

by  the  said  account  appeared  to  be  justly  due  to  him  from 
this  defendant ;  and  the  said  plaintiff  thereupon,  and  on 
the day  of ,  gave  to  this  defendant  a  receipt  or  ac- 
quittance for  the  same,  under  his  hand,  in  full  of  all  demands, 
and  which  said  receipt  or  acquittance  is  in  the  words  and 
figures  following,  that  is  to  say  \here  state  the  receipt  verba- 
tim\  as  by  the  said  receipt  or  acquittance,  now  in  the  posses- 
sion of  this  defendant,  and  ready  to  be  produced  to  this  hon- 
orable court,  will  appear.  Wherefore,  etc.  [Conclude  as  in 
No.  156.] 

(i)  A  plea  of  stated  account  obviously  constitutes  a  bar  to  a  suit  in 
equity  for  an  accounting,  since  in  that  case  the  remedy  at  law  is  en- 


l66  IN   EQUITY. 

tirely  adequate ;  but  of  course  a  stated  account  may  be  opened  for 
fraud  and  error.     Pom.  Eq.  Jur.,  Sec.  1421. 

Parties  who  have  long  acquiesced  in  settlements  of  accounts  or 
other  mutual  dealings  are  not  permitted  to  reopen  or  disturb  them; 
and  this  is  true  even  though  the  parties  stood  in  confidential  relations 
towards  each  other,  as  trustee  and  cestui  que  trust,  principal  and  agent, 
and  the  like,  and  the  settlement  embraced  matteis  growing  out  of  such 
relations.     Pom.  Eq.  Jur.,  Sec.  820. 

See  31st  Rule  in  Equity,  and  note  to  No.  159. 


No.  166. 
Plea  of  'Want  of  Interest  of  Defendant  (i). 

[  Title  and  commencement?^ 

As  to  so  much  of  and  such  parts  of  the  plaintiff's  bill  as 
charges  that  this  defendant  is  interested  in  the  personal 
estate  of  A.  B.,  the  testator  in  the  said  bill  named,  and  seeks 
an  account  of  the  said  testator's  personal  estate,  this  defend- 
ant pleads  thereto,  and  for  plea  says  that  he  is  merely  a  sub- 
scribing witness  to  said  testator's  will,  and  in  no  wise  inter- 
ested therein ;  and  this  defendant  avers  that  he  has  not,  nor 
ever  had,  or  pretended  to  have,  nor  does  he  or  did  he  ever 
claim  any  right,  title  or  interest  whatsoever  in  the  personal 
estate  of  the  said  testator,  or  any  part  thereof,  and  that  the 
said  plaintiff  has  no  right  to  institute  this  or  any  other  suit 
against  him  in  respect  thereof.  All  which  said  matters  and 
things  this  defendant  doth  aver  and  plead  in  bar  to  so  much 
of  the  said  plaintiff's  bill  as  hereinbefore  particularly  men- 
tioned and  pleaded  to.  And  this  defendant,  not  waiving  his 
said  plea,  but  relying  thereon,  and  for  better  supporting  the 
same,  for  answer  to  so  much  of  the  said  bill  as  aforesaid,  saith 
he  denies  that  he  now  is,  or  ever  was,  interested  in  the  per- 
sonal estate  of  the  said  testator  or  any  part  thereof.  \Con- 
clude  as  in  No.  156.] 

(i)  See  note  to  No.  159. 


PLEAS.  167 

No.  167. 

Plea  of  a  \Vill  (i). 

[  Title  and  commencement]. 

As  to  so  much  and  such  part  of  the  said  plaintiff's  bill  as 
seeks  [thai  a  receiver  may  be  forthwith  appointed  to  receive  the 
rents  and  profits  of  the  real  estates^  late  of  f.  T.^  deceased^  in 
the  said  bill  named^  and  now  in  the  possession  of  this  defend- 
ant]^ and  that  this  defendant  may  account  with  the  said 
plaintiff  for  the  rents  and  profits  thereof,  and  that  this 
defendant  may  be  restrained  by  the  order  and  injunction 
of  this  honorable  court  from  felling,  etc.,  timber,  etc.,  grow- 
ing thereon,  or  which  seeks  to  set  aside  the  will  of  the  said 
J.  T.,  or  which  seeks  any  relief  relative  thereto ;  this  defend- 
ant doth  plead  thereto,  and  for  plea  saith,  that  the  said  J.  T. 
being  before  and  at  the  time  of  making  his  will,  seized  to 
him  and  his  heirs,  of  and  in  divers  manors,  etc.,  in  the  sev- 
eral counties  of,  etc.,  of  the  yearly  value  of  eleven  hundred 
dollars  or  thereabouts,  and  being  of  sound  mind,  memory, 
and  understanding,  duly  made  and  published  his  last  will 

and  testament  in  writing,  bearing  date  the day  of , 

which  was  executed  by  him  in  the  presence  of,  and  attested 
by,  J.  O.,  J.  H.,  and  R.  S.,  and  thereby  gave,  etc.,  [setting 
forth  the  will^  under  which  the  defendant  had  an  estate  for 
life  in  the  testator'' s  real  estate^  with  retnainder  to  the  defend- 
ants sons^  and  that  the  testator  appointed  the  defendant  exe- 
cutor of  his  said  will\\   and  the  said  James  Thompson,  being 

so  seized  or  entitled  as  aforesaid,  died  on  the  day  of 

last,  without  having  altered  or  revoked  his  said  will ; 

and  this  defendant,  soon  after  the  death  of  the  said  testator, 
entered  on  the  said  real  estates  devised  to  him  in  manner 
aforesaid,  and  has  ever  since  been  in  the  enjoyment  or 
receipt  of  the  rents  and  profits  thereof.  Therefore,  etc. 
[See  No.  156.] 

(i)  See  note  to  No.  159. 


l68  IN   EQUITY. 

No.  168. 

Plea  of  an  Award  (i). 

[  Title  and  commencement^ 

That  divers  disputes,  controversies,  and  differences  having 
arisen,  and  being  depending,  between  the  said  plaintiff  and 
this  defendant  concerning  an  agreement  for  the  purchase  by 
this  defendant,  from  the  said  plaintiff,  of  the  lease,  good- 
will, and  fixtures  of  a  certain  house  and  premises,  used  as 
a  baker's  shop,  in  ,  in  the  county  of ;  for  the  set- 
tling and  adjusting  such  variances  and  controversies,  the  said 
plaintiff  and  this  defendant,  by  two  several  bonds  or  writings, 

obligatory,  bearing  date  respectively   the day  of , 

became  reciprocally  bound  to  each  other  in  the  penal  sum 

of dollars  to  be  paid  to  each  other,  with  conditions  to 

the  said  writings  obligatory  annexed  to  make  void  the  same, 
if  the  said  plaintiff  and  this  defendant,  their  respective  exe- 
cutors, administrators,  and  assigns  should  obey  and  perform 
the  award,  arbitrament,  judgment,  final  end,  and  determina- 
tion of  I.  S.,  an  arbitrator  indifferently  chosen  between  the 
said  parties,  concerning  the  said  disputes,  controversies,  and 
differences,  in  respect  of  the  said  agreement  for  the  purchase 
of  the  lease,  good-will,  and  fixtures  of  the  premises  aforesaid, 
so  as  the  said  award  under  the  hand  of  the  said  arbitrator 
should  be  made  and  set  down  in  writing  under  his  hand, 
ready  to  be  delivered  to  the  parties  in  difference  on  or  before 

the day  of then  next,  but  now  long  since  past;  and 

the  said  I.  S.  having  taken  upon  himself  the  burden  of  the 
said  award,  and  having  deliberately  and  at  large  heard,  read, 
and  duly  and  maturely  weighed  and  considered  all  and  singu- 
lar the  allegations,  vouchers,  proofs,  and  evidences  brought 
and  produced  before  him,  by  and  on  the  part  and  behalf  of 
the  said  plaintiff  and  this  defendant,  touching  the  said  mat- 
ters in  dispute  and  difference  between  them,  and  referred  to 
him  as  aforesaid,  did  within  the  time  limited  for  that  pur- 
pose by  the  said  bonds,  that  is  to  say,  on  the day  of 


PLEAS.  169 

,  duly  make  his  award  in  writing  under  his  hand  and 

seal,  of  and  concerning  the  matters  aforesaid  (one  part  whereof 
was  delivered  to  this  defendant),  and  did  thereby  award  and 
find  that  the  aforesaid  agreement  between  the  defendant 
and  the  said  plaintiff,  relative  to  the  aforesaid  lease,  good- 
will, and  fixtures,  was  not  binding  upon  them,  and  the  said 
arbitrator  did  therefore  declare  the  same  void  accordingly; 
and  the  said  arbitrator  did  thereby  award  and  declare  that 
the  said  plaintiff  had  no  claim  or  demand  whatsoever  against 
this  defendant,  in  respect  or  on  account  of  the  said  agree- 
ment, as  by  the  said  award,  reference  being  thereunto  had, 
will  more  fully  appear;  and  this  defendant  avers  that  the 
said  award  hath  hitherto  remained  and  still  is  unimpeached, 
and  in  full  force  and  effect;  and  that  the  same  was  made 
previously  to  the  said  plaintiff's  bill  being  filed  in  this  hon- 
orable court  for  the  specific  performance  of  the  said  agree- 
ment so  declared  void  by  the  said  award  as  aforesaid. 
Therefore,   etc  (2). 

(i)  An  award  is  treated  as  the  continuance  of  the  agreement  to  sub- 
mit. If  it  directs  acts  to  be  done,  which  if  stipulated  for  in  a  contract 
would  render  such  contract  capable  of  enforcement,  then  the  award 
itself  may  be  specifically  enforced.     Pom.  Eq.  Jur.,  Sec.  1402. 

(2)  See  31st  Rule  in  Equity,  and  note  to  No.  159;  and  for  closing 
words  see  No.  156. 


No.  169. 

Circumstances  Bringing  a  Case  Within  the  Protection  of 
a  Statute,  viz.,  the  Statute  of  Limitations,  or  the  Stat- 
ute of  Frauds  (i) 

[  Title  and  commencement^ 

As  to  so  much  of  the  bill  as  seeks  an  account  and  discovery 
of  the  estate  and  effects  of  H.  C,  Esq.,  deceased,  this  defend- 
ant's testator,  or  that  seeks  a  satisfaction  for,  or  in  respect  of, 
any  money  received  by  the  said  H.  C,  for  or  on  account  of  I. 
G.,  in  the  said  bill  named,  or  for  or  on  account  of  the  said 


170  IN   EQUITY. 

plaintiff;  or  that  seeks  a  discovery  of  how  many  hogsheads 
of  tobacco  or  rice,  or  any  other  commodities  pretended  to 
have  been  consigned  to  the  said  H.  C,  or  that  seeks  a  satis- 
faction for  the  same ;  or  that  seeks  a  discovery  or  satisfaction 
for  any  of  the  money,  goods,  or  effects  of  the  said  I.  G.,  come 
to  the  hands  of  this  defendant,  since  the  decease  of  the  said 
H.  C;  this  defendant  pleads  thereto,  and  for  plea  says,  that 
the  said  I.  G.,  under  whom  this  defendant  claims,  departed 

this  life  in  or  about  the  year ,  and  that  the  said  H.  C, 

this  defendant's  testator,  afterwards  also  departed  this  life  in 

the  month  of ,  in  the  year ,  and  that  the  matters 

and  effects  pretended  to  have  been  received  by  the  said  H.  C, 
or  by  this  defendant,  and  the  goods  and  commodities  pre- 
tended to  have  been  consigned  (if  any  sums  of  money,  goods, 
or  effects  were  received  by  the  said  H.  C,  or  by  this  defend- 
ant, which  this  defendant  does  not  admit),  were  received  by 
the  said  H.  C,  or  by  this  defendant  above  six  years  before 
this  defendant  was  served  with  any  process  of  this  honorable 
court  to  answer  the  said  bill,  or  any  process  whatsoever  was 
sued  against  this  defendant  to  account  for  the  same ;  and  that 
if  the  said  plaintiff  had  any  cause  of  action  or  suit  against 
this  defendant,  or  against^ the  said  H.  C.  for  or  concerning 
any  of  the  said  matters,  which  this  defendant  does  not  admit, 
that  such  cause  of  action  or  suit  did  not  accrue  or  arise  within 
six  years  before  the  said  bill  was  filed,  or  this  defendant 
served  with  process ;  nor  did  this  defendant,  or  his  testator, 
at  any  time  within  six  years  before  the  said  bill  was  exhibited, 
or  process  sued  out  against  this  defendant,  promise  or  agree 
to  come  to  any  account,  or  to  make  satisfaction,  or  to  pay 
any  sum  or  sums  of  money,  for  or  by  reason  of  any  of  the 
said  matters ;  and  that  by  a  certain  act  of ,  for  the  limit- 
ation of  actions  and  suits  at  law,  it  was  enacted,  etc.  [state 
the  statute  to  be  pieaded\  and  this  defendant  pleads  the 
several  matters  aforesaid  in  bar  to  so  much  of  the  plaintiff's 
said  demand  as  aforesaid,  and  prays  the  judgment  of  this 
honorable  court  thereon ;  and  this  defendant  for  answer,  etc. 


PLEAS.  171 

(i)  See  31st  Rule  in  Equity,  and  note  to  No.  159. 

In  the  earlier  forms  of  the  statute  of  limitations  the  provisions  were 
in  express  terms  confined  to  actions  at  law ;  and  yet  courts  of  equity, 
proceeding  upon  the  analogy  of  these  enactments,  in  most  suits  to 
enforce  equitable  titles  to  real  estate  and  equitable  personal  claims, 
applied  the  statutory  periods.  In  certain  kinds  of  suits,  however, 
especially  those  brought  against  trustees  to  enforce  express  trusts,  the 
analogy  of  the  statute  was  not  followed.  The  modern  forms  of  these 
statutes  in  the  American  States  generally  declare  in  express  terms 
that  periods  of  limitation  shall  apply  to  all  equitable  suits  as  well  as 
legal  actions.     Pom.  Eq.  Jur.,  Sec.  419. 

Courts  of  equity  have  also  been  in  the  habit  of  applying  the  statute 
of  limitations  as  a  bar,  by  analogy,  in  all  ordinary  cases,  even  though 
equitable  suits  were  not  expressly  included  within  the  statutory  pro- 
visions. See  Kane  vs.  Bloodgood,  7  Johns.  Ch.,90;  Lansing  vs.  Starr, 
2  Johns.  Ch.,  150. 

There  is  no  technical  rule  observed  by  the  court  of  chancery  as  to 
the  form  of  a  plea  of  the  statute  of  limitations.  A  plea  which  sets  up 
an  adverse  possession  of  forty  years,  while  the  period  required  by  the 
statutes  of  the  state  to  bar  a  recovery  is  twenty  years,  is  good ;  nor  is 
it  necessary  to  make  any  express  reference  to  the  statutes  of  the  state. 
Harpending  vs.  Reformed  Protestant  Dutch  Church,  16  Peters,  455. 


No.  170. 

Plea  of  Purchase  for  a   Valuable  Consideration    without 

Notice  (i). 

[  Title  a7id  commencement^ 

As  to  so  much  of  the  said  bill  as  seeks  an  account  of  what 
is  due  and  owing  to    the  said  plaintiff,  in   respect  of  the 

annuity  of dollars  therein  mentioned,  and  stated  to  be 

charged  upon,  and  issuing  out  of,  the  hereditaments  and 
premises  therein  and  hereinafter  mentioned,  this  defendant 
pleads  thereto,  and  for  plea  says  that  A.  B.,  previously  to 

and  on  the day  of ,  was,  or  pretended  to  be,  seized 

in  fee-simple,  and  was  in,  or  pretended  to  be  in,  the  actual 
possession  of  all  these  manors,  in  the  said  bill  particularly 
mentioned  and  described,  free  from  all  incumbrances  what- 


172  IN   EQUITY. 

soever;  and  this  defendant,  believing  that  the  said  A.  B. 
was  so  seized  and  entitled,  and  that  the  said  hereditaments 
and  premises  were  in  fact  free  from  all  encumbrances,  on 
the day  of ,  agreed  with  the  said  A.  B.  for  the  abso- 
lute purchase  of  the  fee-simple  and  inheritance  thereof; 
whereupon  certain  indentures  of  lease  and  release,  bearing 
date  respectively  on,  etc.,  between  the  said  A.B.  of  the  one 
part,  and  this  defendant  of  the  other  part,  were  duly  made 
and  executed ;  and  by  the  said  indenture  of  release  the  said 

A.  B.,  inconsiderationof  the  sum  of dollars,  paid  to  him 

by  this  defendant,  granted,  bargained,  sold,  released,  and 
confirmed  unto  this  defendant,  all,  etc.  [se^  out  the  parcels 
verbatim  from  the  deed\^  to  hold  unto,  and  to  the  use  of  this 
defendant,  his  heirs  and  assigns  forever ;  and  in  the  said  in- 
denture of  lease  is  contained  a  covenant  from  the  said  A.  B. 
with  this  defendant,  that  he,  the  said  A.  B.,  was  absolutely 
seized  of  the  said  hereditaments  and  premises,  and  that  the 
same  and  each  of  them  and  every  part  thereof  were  and  was 
free  from  all  encumbrances ;  as  by  the  said  indentures  of  lease 
and  release  respectively,  reference  being  thereunto  had,  will 
more  fully  appear  ;  and  this  defendant  avers  that  the  said 

sum  of  dollars,  the  consideration  money  in  the  said 

indenture  of  release  mentioned,  was  actually  paid  by  this  de- 
fendant to  the  said  A.  B.,  at  the  time  the  said  indenture  of 
release  bears  date  ;  and  this  defendant  also  avers  that  at 
or  before  the  respective  times  of  the  execution  of  the  said 
indentures  of  lease  and  release  by  the  said  A.  B.  and  this 
defendant,  and  of  the  payment  of  the  said  purchase-money, 
he,  this  defendant,  had  no  notice  whatsoever  of  the  said  annu- 
ity of dollars,  now  claimed   by  the  said    plaintiff,  or 

of  any  other  encumbrance  whatsoever,  that  in  anywise  affected 
the  said  hereditaments  and  premises,  so  purchased  by  this 
defendant  as  aforesaid,  or  any  of  them,  or  any  part  thereof; 
and  this  defendant  insists  that  he  is  a  bojta  fide  purchaser 
of  the  said  hereditaments  and  premises  for  a  good  and  valu- 
able consideration,  and  without  any  notice  of  the  said  annu- 


PLEAS.  173 

ity  claimed  by  the  plaintiflf;  all  which  matters  and  things 
this  defendant  avers  and  pleads  in  bar  to  so  much  of  the 
said  plaintiff's  bill  as  is  hereinbefore  particularly  men- 
tioned; and  prays  the  judgment  of  this  honorable  court, 
whether  he  should  make  any  further  answer  to  so  much  of 
the  said  bill  as  is  hereinbefore  pleaded  to ;  and  this  defend- 
ant, not  waiving  his  said  plea,  but  relying  thereon,  and 
for  better  supporting  the  same,  for  answer  says  that  he  had 
not  at  any  time  before,  or  at  the  time  of,  purchasing  the  said 
hereditaments  and  premises,  or  since,  until  the  said  plain- 
tiff's bill  was  filed,  any  notice  whatsoever,  either  expressed 

or  implied,  of  the  said  annuity  of dollars  claimed  by  the 

said  plaintiff,  or  that  the  same  or  any  other  encumbrance 
whatsoever  was  charged  upon  or  in  anywise  affected  the 
said  hereditaments  and  premises  so  purchased  as  aforesaid, 
or  any  of  them,  or  any  part  thereof;  and  this  defendant 
denies,  etc.  [continue  with  answer]. 

(i)  See  31st  Rule  in  Equity,  and  note  to  No.  159. 


No.  171. 

Plea  of  Want  of  Proper  Parties  (i). 

[  Title  and  commencement?^ 

As  to  so  much  of  the  said  complainant's  (2)  bill  as  seeks 
an  account  from  this  defendant,  as  executor  and  heir  at  law 
of  H.  E.,  Esq.,  deceased,  in  the  said  bill  named,  this  defend- 
ant's late  brother,  for  what  remains  due  and  owing  upon  the 

bond  in  the  said  bill  mentioned,  bearing  date  the day 

of ,  in  the  year ,  and  payment  by  this  defendant  as 

such  executor  and  heir  at  law  of  the  said  H.  E.,  deceased,  as 
aforesaid,  of  what  shall  be  found  due  on  taking  such  account ; 
this  defendant   pleads   thereto,  and   for  plea  says    that   no 

part  of  the  sum  of  $ ,  for  securing  the  repayment  whereof 

the  said  bond  was  executed,  was  paid  to  or  received  by  the 
said  H.  E.,  but  that  the  whole  was  paid  unto  A.  W.,  in  the 


174  ^^   EQUITY. 

said  bond  and  in  the  said  bill  also  named,  and  received  by 
him  for  his  sole  use,  and  that  the  said  H.  E.  was  only  surety 
for  the  said  A.  W.,  and  that  the  said  complainant  afterwards 
accepted  a  composition  for  what  he  alleged  to  be  due  on  said 
bond  from  the  said  A.  W.  without  the  privity  of  the  said  H. 
E.  in  his  lifetime,  or  this  defendant  since  the  death  of  the 

said  H.  E.,  which  took  place  on  or  about  the day  of , 

as  in  the  said  bill  mentioned,  since  which  no  demand  has 
been  made  on  this  defendant  for  any  money  alleged  to  be 
due  on  the  said  bond;  and  that  the  said  A.  W.  died  several 
years  ago,  seized  of  considerable  real  estates,  and  also  pos- 
sessed of  a  large  personal  estate,  and  that  his  heir  at  law,  or 
the  devisee  of  his  real  estate,  and  also  the  representative  of 
his  personal  estate,  ought  to  be,  but  are  not,  made  parties  to 
the  said  bill.     Therefore,  etc.     [See  No.  156.] 

(i)  See  note  to  No.  159. 
(2)  See  note  to  No.  67. 


No.  172. 

Plea  that  the  Discovery  Sought  by  the  Bill  would  Betray 
the  Confidence  Reposed  in  the  Defendant  as  an  At- 
torney (i). 

[  Tt'^le  and  commencement^ 

As  to  so  much  and  such  part  of  the  said  bill  as  seeks  a 
discovery,  from  this  defendant  of  the  \state  what]^  of  E.  F., 
another  defendant  in  the  said  bill  named;  this  defendant 
pleads  thereto,  and  for  plea  says  that  he,  this  defendant,  is 
duly  admitted  and  sworn  an  attorney  of  the  several  courts  of 

the  state  of ,  and  also  a  solicitor  of  this  honorable  court, 

and  has  for  several  years  past  practiced,  and  now  practices, 
as  such;  and  this  defendant  was  employed  in  that  capacity 
by  E.  F.,  the  said  other  defendant,  and  in  that  capacity  only, 
or  by  means  of  such  employment  only,  has  had  the  inspection 
and  perusal  of  [state  what\^  or  any  part  or  parts  thereof,  for 
the  use  and  service  of  his  said  clients,  and  therefore  ought 


PLEAS.  175 

not,  as  this  defendant  is  advised,  to  be  compelled  to  discover 
the  same.     Wherefore,  etc.     ^See  No.  156.] 

(i)  A  party  will  not  be  compelled  to  disclose  the  legal  advice  given 
him  by  his  attorney  or  counsel,  nor  the  facts  stated,  nor  the  matter 
communicated  between  himself  and  them  in  reference  to  the  pending 
suit,  or  to  the  dispute  which  has  resulted  in  the  present  litigation  ;  nor, 
on  the  other  hand,  will  these  professional  advisers  be  compelled  or 
permitted  to  disclose  the  matters  which  they  have  learned  or  com- 
municated in  the  same  manner.     Pom.  Eq.  Jur.,  Sec.  203, 

See  also  31st  Rule  in  Equity  and  note  to  No.  159. 


No.  173. 

Plea  to  a  Bill  of  Revivor  (i). 

[^Tzile  and  commencement?^ 

That  the  said  plaintiff  is  not,  as  stated  in  the  said  bill  of 
revivor,  the  personal  representative  of  A.  B.,  deceased,  the 
testator  therein  named,  and  as  such  entitled  to  revive  the 
said  suit  in  the  said  bill  of  revivor  mentioned  against  this 
defendant ;  but  the  said  plaintiff  is  the  administrator  only  of 

C.  D.,  late  of ,  deceased,  who  died  intestate  on  the 

day  of last,    and  was  the  sole  executor  of  the  said  A.  B. ; 

and  that  letters  of  administration  of  the  goods  and  estate  of 
the  said  A.  B.,  unadministered  by  the  said  C.  D.  in  his  life- 
time, have  since  the  death  of  the  said  C.  D.  been  duly  granted 

by  the  proper  court  to  E.  F.,  of ,  who  thereby  became,  and 

now  is,  the  legal  personal  representative  of  the  said  A.  B. 

"Wherefore  the  said  defendant  demands  the  judgment  of 
this  honorable  court  whether  he  shall  be  compelled  to  answer 
the  said  plaintiff's  bill,  and  humbly  prays  to  be  dismissed 
with  his  reasonable  costs  in  this  behalf  sustained.       C.  D. 

(I)  See  note  to  No.  159. 


176  IN    EQUITY. 

No.  174. 

Plea  to  Supplemental  Bill  (i). 

\Title  and  commencement^ 

That  the  several  matters  and  things  in  the  said  plain- 
tiff's  present  bill,  stated  and  set  forth  by  way  of  supplement, 
arose  and  were  well  known  to  the  said  plaintiff,  before  and 
at  the  time  the  said  plaintiff  filed  his  original  bill  in  this 
cause ;  and  that  such  said  several  matters  and  things  can  now 
be  introduced,  and  ought  so  to  be,  if  necessary,  by  amending 
the  original  bill.  Wherefore,  etc.  [continue  as  in  No.  173]. 
(i)  See  note  to  No.  159. 

No.  175. 

Plea  to  Part,  and  Answer  to  Residue  of  Bill. 

[Caption^ 

The  plea  of  C.  D.,  defendant  \or^  one  of  the  defendants], 
to  part,  and  the  answer  of  the  same  defendant  to  the  residue, 
of  the  bill  of  complaint  of  A.  B.,  plaintiff  \or^  the  joint  plea 
and  answer,  <9r,  the  joint  and  several  plea  and  answer,  ac- 
cording to  circumstances^ 

This  defendant,  to  all  the  relief  sought  by  the  said  bill,  and 
also  to  all  the  discovery  thereby  sought,  except  the  discovery 
sought  by  or  in  respect  of  \so  much  of  the  said  bill  as  prays 
that  this  defendant  may  answer  and  setforth\  whether,  etc. 
\here  the  language  of  the  interrogatories  which  it  is  neces- 
sary to  answer  must  be  introduced^  this  defendant  does  plead 
in  bar,  and  for  plea  says,  etc.  [here follows  the plea\. 

All  which  matters  and  things  this  defendant  avers  to 
be  true,  and  does  plead  the  same  in  bar  to  the  whole  of  the 
said  bill,  except  such  part  of  the  discovery  thereby  sought 
as  aforesaid;  and  this  defendant  humbly  prays  the  judgment 
of  this  honorable  court  whether  he  ought  to  be  compelled  to 
make  any  further  or  other  answer  to  so  much  of  the  said 
bill  as  is  hereby  pleaded  to,  and  he  prays  to  be  hence  dis- 
missed with  his  costs. 

And  for  answer  to  such  parts  of  the  said  bill  as'are  excepted 
this  defendant  says  that,  etc.  \here  the  answer  follows\ 


ANSWERS.  177 


ANSWERS. 

No.  176. 

The  Commencement. 

\CaptionI\ 

The  answer  of  C.  D.,  the  defendant  \or^  one  of  the  defend- 
ants], [cr,  the  joint  and  several  answers  of  C.  D.  and  P.D.,  the 
defendants  {or^  two  of  the  defendants)],  to  the  bill  of  com- 
plaint of  A.  B.  and  S.  B.,  plaintiffs. 


No.  177. 

Same,  where  there  is  only  one  Defendant  to  an 
Original  Bill. 

\Caption^ 

The  answer  of  C.  D.,  defendant,  to  the  bill  of  complaint  of 
A.  B.,  plaintiff. 


No,  178. 

Same,  by  an  Infant. 
.  \Caption.^ 

The  answer  of  C.  D.,  an  infant  under  the  age  of  twenty- 
one  years,  by  L.  M.,  his  guardian,  defendant  \or^  one  of  the 
defendants],  to  the  bill  of  complaint  of  A.  B.,  plaintiff. 


No.  179. 

Same,  by  Husband  and  Wife. 
\Caption^ 

The  joint  answer  of  C.  D.  and  E.,  his  wife,  defendants,  to 
the  bill  of  complaint  of  A.  B.,  the  plaintiff. 


178  IN   EQUITY. 

No.  180. 

Another  Form  by  Husband  and  Wife. 

The  joint  answer  of  C.  D.  and  E.,  his  wife,  the  [or,  two  of 
the]  above-named  defendants,  to  the  bill,  etc.,  [or,  if  they 
were  married  since  she  was  made  a  defendant,  say\\  The 
joint  answer  of  C.  D.  and  E.,  his  wife,  lately  and  in  the  bill 
called  C.  S.,  spinster  [or,  widow],  to  the  bill,  etc. 

In  answer  to  the  said  bill,  we,  C.  D.  and  E.,  his  wife,  say 
as  follows: 


No.  181. 

Same,  where  the  Bill  Misstates  the  Names  of 
Defendants. 
[Caption^ 

The  answer  of  E.  D.,  one  of  the  above-named  defendants, 
and  the  wife  of  [the  defendant]  C.  D.,  to  the  bill,  etc. 

In  answer  to  the  said  bill,  I,  E.  D.,  answering  separately 
from  my  husband,  in  pursuance  of  an  order  of  this  honor- 
able court,  dated  the day  of 1894,  authorizing  me 

so  to  do,  say,  as  follows: 


No.  182. 

Same,  by  a  Lunatic  or  Idiot,  etc. 

[Caption?^ 

The  joint  answer  of  C.  D.,  a  lunatic  [or,  idiot,  or,  imbecile 
person],  by  T.  P.,  his  guardian  ad  litem,  and  T.  P.,  committee 
of  the  said  C.  D.,  defendants,  to  the  bill  of  complaint  of  A. 
B.,  the  plaintiff. 


No.  183. 

Same,  by  Wife  Separately  under  an  Order. 

[Caption^ 

The  joint  and  several  answers  of  C.  D.,  in  the  bill  called 
R.  D.,  and  of  C.  E.,  in  the  bill  called  D.  E.,  defendants,  to 
the  bill  of  complaint  of  A.  B.,  plaintiff. 


ANSWERS.  179 

No.  184. 

The   First  Paragraph   of  Answer  (i). 

\Caption  and  commencement^ 

This  defendant  [or^  these  defendants  respectively],  now 
and  at  all  times  hereafter  saving  to  himself  [6>;',  themselves] 
all  and  all  manner  of  benefit  or  advantage  of  exception  or 
otherwise  that  can  or  may  be  had  or  taken  to  the  many 
errors,  uncertainties,  and  imperfections  in  the  said  bill  con- 
tained, for  answer  thereto,  or  to  so  much  thereof  as  this  de- 
fendant is  [<9r,  these  defendants  are]  advised  it  is  material  or 
necessary  for  him  [<?r,.them]  to  make  answer  to,  answering, 
says  [d?r,  severally  answering,  say]: 

(i)  These  words,  of  course,  are  inserted  in  all  answers  after  the 
commencement  and  before  the  matters  set  up  in  defense  of  the 
action. 


No.  185. 

Same,   by  a    Formal   Party  "who   is   a   Stranger     to    the 

Facts. 

\Caption  and  commencement^ 

This  defendant,  saving  and  reserving  to  himself,  etc.  [as 
in  No.  184],  answers  and  says  that  he  is  a  stranger  to  all  and 
singular  the  matters  and  things  in  the  said  plaintiff's  bill  of 
complaint  contained,  and  therefore  leaves  the  plaintiff  to 
make  such  proof  thereof  as  he  shall  be  able  to  produce  with- 
out this,  that,  etc.  [conclude  as  in  No.  187]. 


No.  186. 

Same,  by  an   Infant. 

[Caption  and  commencement^ 

This  defendant,  answering  by  his  said  guardian,  says  that 

he  is  an  infant  of  the  age  of years,  or  thereabouts,  and 

he  therefore  submits  his  rights  and  interests  in  the  matters 
in  question  in  this  cause  to  the  protection  of  this  honorable 
court;  without  this,  that,  etc.  [continue  as  in  No.  187]. 


l8o  IN   EQUITY. 

No.  187. 

The  Conclusion  of  an  Answer  (i). 

And  this  defendant  denies  all  and  all  manner  of  unlawful 
combination  and  confederacy  wherewith  he  is  by  the  said 
bill  charged,  without  this,  that  there  is  any  other  matter, 
cause,  or  thing  in  the  said  plaintiff's  said  bill  of  complaint 
contained,  material  or  necessary  for  this  defendant  to  make 
answer  unto,  and  not  herein  or  hereby  well  and  sufficiently 
answered,  confessed,  traversed,  and  avoided  or  denied,  is 
true  to  the  knowledge  or  belief  of  this  defendant;  all  which 
matters  and  things  this  defendant  is  ready  and  willing  to 
aver,  maintain,  and  prove,  as  this  honorable  court  shall 
direct,  and  humbly  prays  to  be  hence  dismissed  with  his 
reasonable  costs  and  charges  in  this  behalf  most  wrongfully 
sustained.  C.  D. 

(i)  As  to  the  signature  to  an  answer,  see  Beach's  Modern  Eq. 
Prac,  Sec.  355;  Foster's  Fed.  Prac,  Sec.  151. 


No.  188. 

Verification  of  Answer  (i). 

State  of , 

County  of ,  ss. 

C.  D.  makes  solemn  oath  and  says:  I  am  the  above- 
named  defendant.  So  much  of  the  foregoing  answer  as  con- 
cerns my  own  acts  and  deeds  is  true  to  the  best  of  my  own 
knowledge ;  and  so  much  thereof  as  concerns  the  acts  or 
deeds  of  any  other  person  or 'persons  I  believe  to  be  true. 

C.  D. 

Sworn  to  before  me  this day  of . 

[Seal.]  J.  N., 

Notary  Public, County. 

(i)  For  another  form  of  affidavit  see  No.  85. 

Unless  specially  waived  in  the  bill,  the  defendant  must  answer 
under  oath.  See  Fulton  Bank  z/s.  Beach,  2  Paige  (N.  Y.)  307,  Dan.  Ch. 
Pr.,  735;  41st  and  59th  Rules  in  Equity;  Foster's  Fed.  Prac,  Sees.  84, 
148,  and  151 ;  and  Beach's  Modern  Equity  Prac,  Sec.  356. 


COMMON    FORMS    USED   IN    FRAMING   ANSWERS.         l8l 


COMMON  FORMS  USED  IN  FRAMING  ANSWERS. 

No.  189. 

Accounts — Reference  to  Book  containing  them. 

The  dealings  and  transactions  in  respect  of  the  said  trade 
are  entered  in  a  large  book,  or  ledger,  kept  on  the  premises 

at ,  and  the  items  in  respect  thereof  are  contained  in  one 

hundred  and  sixty-four  pages,  with  double  columns,  of  the 
said  book;  and  to  set  out  such  items  in  detail  would  occasion 
very  great  expense ;  but  we  are  willing,  if  the  court  shall 
think  proper  so  to  direct,  that  the  plaintiff  or  his  solicitor 
should  inspect  the  said  book,  and  take  extracts  therefrom,  at 
all  reasonable  times  of  the  day. 


No.  190. 

Accounts  Refused,  as  Being  Useless  Before  Decree. 

And  we  say  and  submit  that  it  would  only  occasion  great 
and  useless  expense  were  we  in  this  our  answer  to  set  forth 
any  further  or  fuller  account  of  the  rents  and  profits  afore- 
said; and  that  the  same  ought  to  be  taken,  if  at  all,  by  and 
under  the  directions  and  decree  of  this  honorable  court. 


No.  191. 

Admission  for  Purposes  of  the  Suit  (i). 

We  have  no  personal  knowledge  of  tlie  fact,  but,  for  the 
purposes  of  the  suit,  we  admit  that,  etc. 

or, 

And  this  defendant  further  answering,  says  he  has  been 
informed  and  believes  it  to  be  true  that,  etc.  (9r,  this  de- 
fendant admits  that,  etc. 


l82  IN   EQUITY. 

( I )  The  averments  of  a  bill  in  equity  may  be  considered  as  estab- 
lished whenever  the  statements  in  the  answer  can,  by  fair  interpreta- 
tion, be  construed  into  an  admission  of  or  acquiescence  in  them.  Surget 
z'S.  Byers,  Hempst.,  715. 

Plaintiff  is  entitled  to  a  full  answer  as  to  every  material  allegation 
of  his  bill.  Price  vs.  Tyson,  22  Am.  Dec,  279.  If  the  answer  is  silent 
as  to  a  fact  charged  to  be,  or  which  may  fairly  be  presumed  to  be, 
within  the  knowledge  of  defendant,  such  fact  will  be  deemed  to  be 
admitted.     Moore  vs.  Lockett,  4  Am.  Dec,  683. 

No  admissions  in  an  answer  to  a  bill  in  chancery  can,  under  any 
circumstances,  lay  a  foundation  for  relief  under  any  specific  head  of 
equity  unless  the  ground  be  substantially  set  forth  in  the  bill.  Jack- 
son 2/s.  Ashton,  1 1  Peters,  229. 

If  the  answer  of  the  defendant  admits  a  fact,  but  insists  on  a  matter 
by  way  of  avoidance,  the  complainant  need  not  prove  the  fact  admitted, 
but  the  defendant  must  prove  the  matter  in  avoidance.  Clark  vs.  White, 
12  Peters,  178;  affirming,  5  Cranch  C.  C,  102. 

A  denial  in  an  answer  in  equity  that  defendant  "delivered"  an 
alleged  deed  goes  for  nothing  if  the  answer  admits  facts  and  circum- 
stances which  do  in  law  constitute  delivery.  Adams  vs.  Adams,  21 
Wall.,  185. 

An  evasive  answer  with  admitted  facts  may  entitle  complainant  to 
the  relief  prayed  for.     Allen  vs.  Elder,  2  Am.  St.  Rep.,  63. 


No.  192. 

Claims  Made 'by  Defendant  (i). 

I  claim  to  be  interested  in  the  matters  of  this  suit,  by 
virtue  of,  etc. 

The  short  particulars  of  the  mortgage  now  vested  in  us, 
and  of  our  title  thereto,  are  as  follov^s,  etc. 

We  claim  to  be  equitable  mortgagees  of  the  hereditaments 
mentioned  in  the  said  bill,  together  with  other  hereditaments, 
under  a  memorandum  in  the  words  and  figures  following; 
that  is  to  say,  etc. 

We  claim  a  lien  on  the  shares  of,  etc.,  for  so  much  of  the 
said  debt  as  arises  from  the  unpaid  purchase-money  of  the 
same  shares  respectively,  and  the  interest  thereof. 


COMMON  FORMS  USED  IN  FRAMING  ANSWERS.    183 

(i)  After  having  answered  all  the  allegations  of  the  bill,  defendant 
may  go  on  and  state  matters  in  bar  or  avoidance  of  plaintiff's  claim, 
by  way  of  further  answer.  Price  vs.  Tyson,  22  Am.  Dec,  279.  But  if 
the  answer  goes  out  of  the  bill  to  state  anything  not  material  to  the 
defendant's  case,  it  will  be  expunged  as  impertinent.  Price  vs.  Tyson, 
22  Am.  Dec,  279. 


No.  193. 

Craving  Leave  for  Greater  Certainty. 

We  admit  that,  etc.  [or,  we  believe  that,  etc.],  but,  for 
greater  certainty,  we  crave  leave  to  refer  to  the  said,  etc., 
when  produced. 


No.  194. 

Craving  Leave  to  Refer  to  Codefendant's  Answer. 

I  know  little  or  nothing  respecting  the  deeds,  dealings, 
and  transactions  stated  in  the  said  amended  bill ;  but  I  have 
seen  a  copy  of  the  answer  proposed  to  be  forthwith  put  into 
the  amended  bill  by  the  defendants,  J,  L.  and  G.  W.  F.,  and  I 
have  no  doubt  but  that  the  statements  contained  in  such 
answer  are  correct.  However,  for  my  greater  certainty,  as  to 
the  contents  of  deeds  and  other  written  documents,  I  crave 
leave  to  refer  to  such  deeds  or  documents.  Under  the  cir- 
cumstances hereinbefore  stated,  and  to  avoid  expense  and 
prolixity,  I  abstain  from  answering,  categorically,  the  inter- 
rogatories filed  for  the  examination  of  the  last-named  defend- 
ants and  myself  in  answer  to  the  amended  bill;  but  if  the 
plaintiflfs  so  desire  I  am  ready  and  willing  to  put  in  a  full 
answer  to  the  said  amended  bill. 


No.  195. 

Information  and  Belief. 

I  have  been  informed  and  believe  that,  etc. 
I  believe  that,  etc. 


184  IN   EQUITY. 

We  have  no  reason  to  doubt,  and  therefore  we  believe  that, 
etc. 

We  believe  that  the  statements  contained  in  the  para- 
graphs numbered  respectively  from  i  to  8,  both  inclusive,  of 
the  plaintiff's  bill  of  complaint  are  true,  except  in  the  par- 
ticulars or  respect  hereinafter  mentioned;  that  is  to  say,  etc. 

I,  this  defendant,  C.  D.,  say,  and  we,  these  other  defend- 
ants, believe  it  to  be  true,  that,  etc. 

We  have  no  personal  knowledge  of  the  matters  inquired 

after  by  the interrogatory  filed  in  this  cause ;  but  we 

have  no  reason  to  doubt,  and  therefore  we  believe,  that,  etc. 


No.  196. 

Ignorance  (i). 

I  [or,  we]  do  not  know,  and  can  not  set  forth  as  to  my  [or, 
as  to  either  of  our]  belief  or  otherwise,  whether  or  not  it  is 
alleged  or  is  the  fact  that,  etc. 

(i)  An  answer  stating  that  the  respondent  has  no  knowledge  that 
the  facts  are  as  stated  in  the  bill  of  complaint,  without  any  answer  as 
to  his  belief  concerning  it,  is  deemed  sufficient  to  prevent  the  bill  from 
being  taken  as  confessed,  as  it  may  be  if  no  answer  is  filed,  in  case  the 
complainant  does  not  except  to  the  answer  for  insufficiency  within  the 
period  prescribed  by  the  6ist  Rule  in  Equity.  Brown  vs.  Pierce,  7 
Wall.,  205.     See  Bradford  vs.  Geiss,  4  Wash.,  513. 


No.  197. 

Qualified  Denial. 
Save  as  herein  appears,  it  is  not  the  fact,  etc. 
Save  as  herein  appears  [or,  save  as  by  the  said  schedule 
appears],  I  do  not  know,  etc. 


No.  198. 

Reference  to  Schedule. 

I  have  in  the schedule  hereto  annexed,  and  which  I 

pray  may  be  taken  as  part  of  this  my  answer,  set  forth,  to 
the  best  of  my  knowledge,  information,  and  belief,  a  descrip- 
tion of,  etc. 


COMMON   FORMS    USED    IN    FRAMING  ANSWERS.       185 

No.  199. 

Release,  Craving  some  Benefit  as  if  Pleaded. 

We  submit,  and  humbly  insist,  that  the  said  release  so  exe- 
cuted as  aforesaid,  and  the  payment  of  the  said  sum  of  $ , 

and  the  receipt  given  for  the  same,  is  a  full  discharge ;  and  we 
claim  the  same  benefit  as  if  we  had  pleaded  the  same  release. 
Nevertheless,  we  are  willing  and  hereby  submit  to  account 
as  this  honorable  court  may  think  fit. 


No.  200. 

Settled  Accounts — Claim  of. 

The  account  so  stated  and  settled  was  in  fact  stated  and 
settled  by  the  said  A.  B.  and  myself,  as  it  purports  to  be,  on 
the  day  of  the  date  thereof;  and  I  claim  the  benefit  thereof 
as  a  settled  account. 


No.  201. 

Submission  by  Trustees  to  Act. 

We  submit  in  all  things  to  act  as  this  honorable  court  shall 
direct,  and  we  claim  to  have  our  costs,  charges,  and  expenses, 
properly  incurred,  paid  out  of  the  estate  of  the  said  testator. 


No.  202. 

Traverse. 

The  said  J.  S.  died  on  the day  of ,  and  not  on  the 

day  of ,  as  in  the  second  paragraph  of  the  said  bill 


erroneously  stated ;  but,  save  as  aforesaid,  we  do  not  know,  and 
are  unable,  as  to  our  belief  or  otherwise,  to  set  forth  whether 
or  not  the  statements  or  some  or  one  or  which  of  the  state- 
ments contained  in  the  paragraphs  numbered  respectively  i 
to  8,  both  inclusive,  of  the  plaintiff's  bill  of  complaint,  are  or 
is  true,  or  which  of  them  are  or  is  or  in  what  respect  untrue, 
or  how  otherwise. 


l86  IN   EQUITY. 

No.  203. 

Trustee — Desire  to  be  Discharged. 

I  have  never  in  any  manner  intermeddled  with  the  said 
trust  estate,  nor  received  any  of  the  rents  or  profits  thereof; 
and  I  am  very  desirous  to  be  discharged  from  the  trusts  in 
the  bill  mentioned,  and  I  am  ready  and  willing  to  convey  and 
release  the  trust  premises  to  such  persons,  or  to  do  such 
other  acts,  as  this  honorable  court  shall  direct  for  this  purpose, 
upon  being  indemnified  in  so  doing,  and  having  my  costs  and 
expenses. 


No.  204. 

Vexatious   Suit;    Settled   Accounts;    Claim   of    Benefit  of 
Defense  as  if  Raised  by  Plea  or  Demurrer. 

We  submit  to  the  judgment  of  this  honorable  court,  and 
humbly  insist,  that  this  suit  is  altogether  unnecessary  and 
vexatious ;  and  that  even  if  the  plaintiff  had  been  entitled  to 
such  relief  as  is  prayed  by  the  said  bill,  the  said  relief  might 
have  been  obtained  by  proceedings  at  law ;  but  we  say  that  a 
large  sum  of  money  has  been  for  a  long  time,  and  now  is, 
justly  due  and  owing  to  us  from  the  plaintiff;  and  that  during 
the  whole  of  the  transactions  in  the  said  bill  mentioned  we 
were  in  advance  with  creditors  of  the  plaintiff;  and  that  the 
plaintiff  has  repeatedly  and  partly  in  the  letters  hereinbefore 
set  forth  acknowledged  the  accuracy  of  the  accounts  rendered 
by  us  to  him,  and  has  treated  the  same  as  being,  as  in  fact 
they  were,  settled  accounts;  and  we  claim  the  same  benefit 
from  this,  our  answer,  as  if  we  had  pleaded  the  matters  herein 
stated,  or  any  of  them,  or  as  if  we  had  demurred  to  the  said 
bill. 


No.  205. 

Want  of  Interest  in  Plaintiff;  Craving  some  Benefit  as  if 
Defense  by  Demurrer. 

I  am  advised,  and  humbly  submit,  that  the  plaintiff  has  not 
any  interest  in  the  estate  of  the  said  testator,  or  in  the  mat- 


COMMON    FORMS   USED   IN    FRAMING   ANSWERS.        1 87 

ters  in  question  in  this  suit,  nor  any  such  estate  or  interest 
in  the  said  testator's  estate,  or  the  matters  aforesaid,  so  as  to 
entitle  the  plaintiff  to  sustain  this  suit ;  and  I  crave  the  same 
benefit  from  this  defense  as  if  I  had  demurred  to  the  said  bill. 


No.  206. 

Claim  of  Benefit  of  same  Defense  to  Amended,  as 
to  Original  Bill. 

We  submit  that  the  plaintiff  has  not  by  his  said  amended 
bill  entitled  himself  to  any  equitable  relief  as  against  us; 
and  we  accordingly  claim  the  benefit  of  the  same  objections 
to  the  said  amended  bill  which  are  made  by  our  said  answer 
to  the  said  original  bill. 


No.  207. 

Answer  of  an  Executrix  Submitting  to  act  under  the 
Indemnity  of  the  Court. 

\Caption^  commencement^  and  first  paragraph^ 

This  defendant  says  that  she  admits  that  S.  W.,  the  testator 
in  the  said  bill  named,  was  at  the  time  of  his  death  possessed 
of  a  considerable  personal  estate,  and  particularly  of  the  sev- 
eral sums  in  the  public  stocks  or  funds  in  the  said  bill  of 
complaint  mentioned ;  and  that  the  said  testator  duly  made 
and  published  his  last  will  and  a  codicil  thereto,  of  such  re- 
spective dates,  and  to  such  purport  or  effect  as  in  the  said 
bill  in  that  behalf  stated  ;  but,  nevertheless,  etc. 

Believes  that  the  said  testator  did,  soon  after  making  said 
will  and  codicil,  depart  this  life  without  altering  or  revoking 
the  said  will,  save  by  the  said  codicil,  or  without  altering  or 
revoking  the  said  codicil,  leaving  this  defendant,  his  widow, 
and  such  other  persons  as  in  the  said  bill  in  that  behalf 
named,  him  surviving; 

Admits  that  she  has  duly  proved  the  said  will  and  codicil 
in  the  proper  court,  and  has  taken  upon  herself  the  execu- 
tion thereof,  and  has  by  virtue  thereof  possessed  herself  of 


1 88  IN   EQUITY. 

as  much  of  the  said  testator's  personal  estate  and  effects  as 
she  has  been  able  to  do;  and  this  defendant  denies  that  she 
ever  threatened  to  sell  or  dispose  of  the  said  stocks,  funds, 
and  annuities  in  the  said  will  and  bill  mentioned,  without  any 
regard  to  the  interest  of  the  said  complaints  in  remainder 
therein,  or  has  made  any  transfer  of  the  same; 

Submits  to  this  honorable  court  what  interest  the  said  com- 
plainants are  entitled  to  in  the  personal  estate  of  the  said  S. 
W.  by  virtue  of  his  said  will ; 

Says  she  has  in  a  schedule,  etc.,  set  forth  a  true  and  par- 
ticular account  of  all  the  personal  estate  to  which  the  said 
testator  was  entitled  at  his  death,  distinguishing  what  part 
thereof  has  come  to  her  hands,  or  to  the  hands  of  any  other 
person  or  persons  for  her  use,  except  such  sums  as  are  men- 
tioned in  the  schedule  hereinafter  referred  to; 

Says  she  has  in  the  second  schedule,  etc.,  set  forth  an  ac- 
count current  between  her  and  the  estate  of  the  said  S.  W. 
and  this  defendant,  and  has  therein  set  forth  to  the  best  of 
her  knowledge,  etc.,  a  full  and  true  account  of  all  sums  of 
money,  part  of  the  personal  estate  of  the  said  testator  come 
to  her  hands,  or  to  the  hands  of  any  person  or  persons  to  her 
use,  and  of  the  application  thereof; 

Says  she  is  ready  and  willing  to  account  as  this  honorable 
court  shall  direct,  for  all  such  parts  of  the  personal  estate  of 
the  said  testator  as  have  been  possessed  or  received  by  this 
defendant,  having  all  just  and  reasonable  allowances,  made, 
which  she  is  entitled  to  as  such  executrix;  and  in  all  other 
respects  this  defendant  submits  to  act  as  the  court  shall  di- 
rect, upon  being  idemnified  and  paid  her  costs  of  this  suit ; 
[conclusion^  see  No.  187.] 


N0.2O8. 

Answer  of  the  Executors  of  a  Deceased  Acting  Executor 
to  a  Bill  of  Revivor. 

[Caption^  commencement^  and  first  paragraph^ 
These  defendants  say  that  they  believe  it  to  be  true  that  at 
or  about  the  time  in  the  said  bill  stated,  R.  W.,  in  the  said 


COMMON    FORMS    USED   IN    FRAMING   ANSWERS.         1 89 

bill  of  revivor  named,  exhibited  his  original  bill  of  complaint 
in  this  honorable  court  against  such  parties  as  defendants 
thereto,  as  in  the  said  bill  mentioned,  thereby  stating  and 
praying  to  the  effect  in  the  said  bill  of  revivor  set  forth,  so  far 
as  the  same  is  therein  set  forth,  and  that  in  consequence  of 
the  death  of  the  said  R.  W.,  the  said  plaintiff,  T.  W.,  at 
or  about  the  time  in  the  said  bill  of  revivor  mentioned,  ex- 
hibited his  supplemental  bill  in  this  honorable  court  against 
such  parties  defendants  thereto  as  therein  mentioned,  stating 
and  praying  to  the  effect  in  the  said  bill  of  revivor  set  forth, 
so  far  as  the  same  is  therein  set  forth.  And  that  the  said 
several  defendants  in  the  said  supplemental  bill  named  after- 
wards appeared  and  put  in  their  answers  thereto,  and  that 
such  proceedings  have  since  been  had  in  the  said  cause  as  in 
the  said  bill  of  revivor  mentioned;  but  for  their  greater  cer- 
tainty, nevertheless,  these  defendants  crave  leave  to  refer  to 
the  said  original  and  supplemental  bills,  answers,  and  other 
proceedings  now  remaining  filed  as  of  record  in  this  honorable 
court;  and  these  defendants  further  severally  answering,  say 
they  admit  it  to  be  true  that  before  any  further  proceedings 
were  had  in  the  said  cause,  and  at  or  about  the  time  in  the 
said  bill  of  revivor  in  that  behalf  stated,  G.  R.,  one  of  the  de- 
fendants to  the  said  original  and  supplemental  bills,  and  one 
of  the  executors  and  trustees  under  the  will  of  the  testator  T. 
W.,  in  the  said  bill  of  revivor  named,  and  who  has  principally 
acted  in  the  trusts  thereof,  departed  this  life,  having  first  duly 
made  and  published  his  last  will  and  testament  in  writing,  of 
such  date  as  in  the  said  bill  of  revivor  mentioned,  and  thereof 
appointed  these  defendants  executors;  and  these  defendants 
admit  that  since  his  death  they  have  duly  proved  his  said 
will  in  the  proper  court,  and  undertaken  the  executorship 
thereof,  and  are  thereby  become  his  legal  personal  repre- 
sentatives, and  that  they  possessed  the  said  G.  R.'s  personar* 
estate  and  effects  so  far  as  they  have  been  conveniently  able, 
and  these  defendants  believe  (although  they  do  not  admit  the 
same)  that  such  personal  estate  and  effects  are  sufficient  to 


190  IN    EQUITY. 

answer  whatever  might  be  due  from  the  said  G.R.  at  the  time 
of  his  death  to  the  estate  of  the  said  testator  T.  W.,  if  anything 
were  so  due ;  but  these  defendants  not  knowing  the  amount 
thereof  are  advised  that  they  can  not  with  safety  or  propriety 
admit  assets  of  their  said  testator  to  be  in  their  hands  sufficient 
to  answer  the  same,  and  these  defendants  say  they  are  ready 
to  account  for  the  said  G.  R.'s  personal  estate  possessed  by 
them,  or  for  their  use,  in  such  manner  as  the  court  shall  be 
pleased  to  direct,  if  the  same  should  become  necessary ;  and 
these  defendants  further  severally  answering,  say  they  submit 
that  the  said  suit  and  proceedings  which  became  abated  on 
the  death  of  the  said  G.  R.  may  stand  and  be  revived  against 
them  as  such  executors  as  aforesaid,  and  be  restored  to  the 
same  plight  and  condition  in  which  they  were  at  the  time  of 
the  death  of  the  said  G.  R. ;  [conclusion^  see  No.  187.] 


No.  209. 

Answer  of  a  Widow  Electing  to  take  the  Bequests  Made 
to  Her  by  a  Will,  and  to  Release  all  Interest  in  the 
Devised  Estates. 

[Caption^  commencement^  and  first  paragraph^ 
This  defendant  says  that  she  believes  it  to  be  true  that  C. 
B.,  deceased,  the  testator  in  the  said  bill  of  complaint  named, 
being  possessed  of  a  large  personal  estate,  did,  at  or  about  the 
time  in  the  said  bill  of  complaint  mentioned,  duly  make  and 
publish  his  last  will  and  testament  in  writing,  of  such  pur- 
port and  effect,  and  containing  such  bequest  to  this  defend- 
ant as  in  the  said  bill  of  complaint  in  that  behalf  set  forth, 
and  that  the  said  testator  appointed  such  persons  as  in  the 
said  bill  of  complaint  named  executors  and  executrix  of  his 
said  will. 

And  this  defendant  further  answering  says  that  she  be- 
lieves it  to  be  true  that  the  said  testator  afterwards,  and  at  or 
about  the  time  in  the  said  bill  of  complaint  mentioned,  duly 


COMMON    FORMS    USED    IN    FRAMING    ANSWERS.         I9I 

made  and  published  a  codicil  to  his  said  will  in  such  words 
and  to  such  purport  and  effect  as  in  the  said  bill  of  complaint 
also  set  forth ;  but  for  her  greater  certainty,  nevertheless,  as  to 
the  said  will  and  codicil,  and  the  respective  dates,  purports, 
and  contents  thereof,  this  defendant  craves  leave  to  refer 
thereto  when  produced. 

And  this  defendant  further  answering  says  that  she  admits 
that  the  said  testator  departed  this  life  at  or  about  the  time 
in  the  said  bill  of  complaint  in  that  behalf  mentioned  with- 
out having  in  any  manner  altered  or  revoked  his  said  will, 
save  by  the  said  codicil,  and  without  having  altered  or  re- 
voked his  said  codicil ;  and  that  the  said  plaintiffs  have  since 
duly  proved  the  said  will  and  codicil  in  the  proper  court,  and 
taken  upon  themselves  the  executorship  thereof. 

And  this  defendant  Turther  says  that  she  claims  to  be  en- 
titled to  the  benefits  intended  her  by  the  said  testator's  will, 
and  is  ready,  upon  the  same  being  secured  to  her  according 
to  the  directions  in  the  said  will  contained,  to  release  to  J. 
P.,  in  the  said  will  named,  all  her  right  and  interest  in  and 
to  the  premises  in  the  said  will  mentioned,  and  for  that  pur- 
pose to  execute  all  necessary  instruments  or  deeds;  [conclu- 
sion^ see  No.  187.] 


No.  210. 

Answer  to  a  Bill  Charging  Infringement  of  a  Patent. 

See  under  title  "Patents"  for  form  of  answers  setting  up 
the  various  defenses  to  such  bill. 


192  IN    EQUITY. 


*  EXCEPTIONS. 

No.  211. 

For   Insufficiency  (i). 

In   Equity. 
Between  W.  W.,  J.  W.,  and  C.  h.,  on  behalf  of  themselves 
and  all  other  the  creditors  of  J.  B.,  who  shall  come  in 
and  contribute  to  the  expense  of  this  suit,  Complainants 
(2),  and  J.  G.  and  T.  B.,  Defendants. 

An  exception  taken  by  the  said  complainants  to  the  in- 
sufficient answer  of  the  said  defendants. 

For  that  the  said  defendants  have  not,  to  the  best  of  their 
knowledge,  remembrance,  information,  and  belief,  answered 
and  set  forth  a  full,  just,  and  true  inventory  and  account  of 
all  and  singular  the  goods  and  chattels,  personal  estate,  and 
effects  whatsoever  which  J.  B.,  the  younger,  in  the  said  bill 
named,  was  possessed  of,  entitled  to,  or  interested  in,  at  the 
time  of  the  date  of  the  indenture  in  the  said  bill  mentioned, 
and  all  the  particulars  whereof  the  same  consisted,  and  the 
quantities,  qualities,  full,  real,  and  true  values  thereof,  and 
of  every  such  particulars;  and  whether  all  or  some  and 
which  of  such  particulars  have  not,  and  when,  been  pos- 
sessed or  received  by,  or  come  to  the  hands  of  them,  the 
defendants,  or  the  one,  and  which  of  them,  or  some,  and 
what  person  or  persons,  by  their  or  either  of  their  order,  or 
for  their  or  either  of  their  use,  and  how,  and  in  what  man- 
ner, and  when  and  where,  and  by  and  to  whom,  and  for  how 
much  the  same  and  every  or  any,  and  what  part  thereof  has 
been  sold  and  disposed  of;  and  whether  any,  what  parts 
thereof,  and  to  what  value  or  amount  now  remain  undis- 
posed of,  and  what  is  become  thereof. 

In  all  which  particulars  the  said  complainants  except  to  the 
answer   of  the    said  defendants   as   evasive,  imperfect,  and 


EXCEPTIONS.  193 

insufficient,  and  humbly  pray  that  the  said  defendants  may  be 
compelled  to  put  in  full  and  sufficient  answer  thereto. 

R.  X., 
of  Counsel  for  Complainant. 

( 1 )  The  mode  in  which  a  plaintiff  avails  himself  of  defects  in  an  an- 
swer or  plea  is  by  exception.  Demurrers  apply  only  to  defects  in  bills. 
See  Beach's  Modem  Eq.  Prac,  Sec.  227;  see  6ist  to  65th  Rules  in 
Equity. 

It  is  the  special  office  of  an  exception,  not  of  a  demurrer,  to  raise  the 
question  whether  an  answer  to  an  interrogatory  is  sufficient.  Chicago, 
St.  Louis,  etc.,  R.  R.  Co.  vs.  Macomb,  2  Fed.  Rep.,  18.  The  exceptions 
should  state  the  charges  in  the  bill,  and  the  interrogatory  applicable 
thereto,  to  which  the  answer  is  addressed,  and  then  the  terms  of  the 
answer,  verbatim,  so  that  the  court  may  at  once  perceive  the  ground 
of  the  exception,  and  ascertain  its  insufficiency.  Brooks  vs.  Byam, 
I  Stor\-  296. 

It  is  not  matter  of  exception  to  an  answer  that  it  is  silent  concerning 
an  immaterial  fact,  or  one  which,  if  admitted,  could  not  tend  to  support 
the  complainant's  equity.     Hardeman  vs.  Harris,  7  How.,  726. 

Exceptions  for  impertinence  are  only  allowed  when  it  is  apparent 
that  the  matter  excepted  to  is  not  material  or  relevant,  or  is  stated 
with  needless  prolixity.  If  it  may  be  material,  the  exception  will  not 
be  allowed,  as  that  would  leave  the  defendant  without  remedy ;  but 
the  allegation  excepted  to  will  be  allowed  to  remain  in  the  answer, 
and  the  effect  thereof  if  found  to  be  true,  determined  on  the  final 
hearing.     Chapman  vs.  School  District  No.  i,  Deady  (U  S.)  108. 

(2)  See  note  to  No.  67. 


No.  212. 

Another  Form  of  Exceptions  to  Answer  for  Insufficiency. 

\Caption^ 

Exceptions  taken  by  the  above-named  plaintiff  to  the 
answer  of  the  defendant  [6»r,  if  more  than  one  defendant.,  of 
the  defendant  C.  D.]  for  insufficiency. 

First  exception.  For  that  the  said  defendant  has  not  in 
and  by  his  said  answer,  according  to  the  best  of  his  knowl- 
edge, remembrance,  information,  and  belief,  answered  and 
set  forth  whether,  etc. 


194  IN   EQUITY. 

Second  exception.  For  that  the  defendant  has  not  in  and 
by  his  said  answer,  in  manner  aforesaid,  answered  and  set 
forth  whether,  etc. 

\And  so  with  respect  to  the  other  exceptions^  using  the  words 
of  the  interrogatory  not  answered?)^ 

In  all  or  some  of  which  particulars  the  said  plaintiflf  is  ad- 
vised that  the  said  answer  of  the  defendant  is  evasive  and 
insufficient,  and  ought  to  be  amended,  and  humbly  prays  the 
same  may  be  amended  accordingly.  R.  X., 

of  Counsel  for  Plaintiff. 


No.  213. 

An  Exception  Taken  to  the  Answer  of  a  Defendant  to  an 

Amended  Bill. 

\Caption?^ 

An  exception  taken  by  the  said  plaintiff  to  the  insufficient 
answer  of  the  said  plaintiff's  amended  bill  of  complaint. 

For  that  the  said  defendant  has  not,  to  the  best  and  ut- 
most of  his  knowledge,  remembrance,  information,  and  be- 
lief, set  forth  the  documents  by  which  the  modus  or  compo- 
sition in  the  said  defendant's  former  answer  alleged  and  in- 
sisted upon  is  made  out. 

In  which  particular  the  said  plaintiff  excepts  to  the 
answer  of  the  said  defendant  as  evasive,  imperfect,  and  in- 
sufficient, and  humbly  prays  that  the  said  defendant  may  be 
compelled  to  put  in  a  full  and  sufficient  answer  thereto. 

R.  X., 

of  Counsel  for  Plaintiff. 
See  notes  to  No.  211. 


No.  214. 

Exceptions  for  Scandal  (i), 
\Captio7i\. 

Exceptions  for  scandal  taken  by  the  above-named  defend- 
ant A.  B.  [or,  plaintiff,  etc.]  to  the  bill  of  complaint  of  the 


EXCEPTIONS.  195 

above-named  plaintiff  [<?;-,  to  the  answer  of  the  above-named 
defendant  A.  B.  to  the  bill  of  complaint  of  the  said  plaintiff] 
filed  in  this  cause  on  the day  of . 

[Describe  the  particular  passages  alleged  to  be  scandalmis  ; 
as  tJmsf\ 

First  exception.  For  that  the  whole  of  the  paragraph  of 
the  said  bill  \or^  answer]  \liere  introduce  language  to  identify 
the  paragraph  referred  to^  is  scandalous. 

Second  exception.     For  that  the  passage  commencing  with 

the  words  "The  said  person,"  in  the line,  and   ending 

with   the  words  "which  he  knew,"  in   the line,  of  the 

paragraph  of  said  bill  \or^  answer]  \identify  the  paragraph^ 
is  scandalous. 

In  all  which  particulars  this  exceptant  excepts  to  the  said 
bill  [or^  answer]  as  scandalous ;  and  humbly  insists  that  the 
said  scandalous  matter  be  expunged  therefrom. 

R.  X., 
of  Counsel  for  Plaintiff". 

(t)  Words,  however  disparaging  or  abusive,  are  not  scandalous  un- 
less they  are  also  "impertinent,"  or,  in  other  words,  irrelevant,  and 
put  in  for  the  mere  purpose  of  scandal.  Henry  vs.  Henry,  98  Am. 
Dec,  87. 

All  scandalous  and  impertinent  matter  in  an  answer  to  a  bill  will 
he  expunged.  Sommers  vs.  Torrey,  28  Am.  Dec,  411.  But  pertinent 
matter,  though  scandalous  in  itself,  is  not  to  be  so  treated.  Price  vs. 
Tyson,  22  Am.  Dec,  279. 

What  matters  mas'  be  struck  out  of  an  answer  as  scandalous,  imma- 
terial, etc.,  see  Griswold  vs.  Hill,  i  Paine  (U.  S.)  390;  Langdon  vs. 
Goddard,  3  Story  ^U.  S.)  13 ;  Sargent  vs.  Larned,  2  Curt.  (U.  S.)  340. 


No.  215. 

Exceptions  to  Master's  Report. 
See  form  No.  280,  post. 


No.  216. 

Exceptions  to  a  Libel. 

See  under  title  "Admiraltv." 


196  IN   EQUITY. 


DISCLAIMER. 

No.   217. 

General  Form  (i). 

[Caption!] 
The  disclaimer  of  the  defendant,  C.  D.,  for  the  bill  of  com- 
plaint herein. 

This  defendant,  saving  and  reserving  to  himself  any  and 
all  advantages  that  might  be  taken  by  exception  to  said  bill, 
says  that  he  does  not  know  that  he,  the  said  C.  D.,  to  his 
knowledge  and  belief,  ever  had,  nor  did  he  claim  or  pretend 
to  have,  nor  does  he  now  claim  any  right,  title,  or  interest  of, 
in,  or  to  the  estates  and  premises,  situated  [describe  them\^  in 
the  said  bill  of  complaint  set  forth,  or  any  part  thereof;  and 
this  defendant  disclaims  all  right,  title,  and  interest  in  and  to 
the  said  estate  and  premises  in  [name  situation]^  in  the  said 
bill  of  complaint  mentioned,  and  every  part'thereof ;  and  this 
defendant  prays  leave  to  be  dismissed  with  his  reasonable 
costs  and  charges  in  this  behalf  most  wrongfully  sustained. 

C.  D. 
Y.  &  Y., 

Solicitors  for  C.  D. 

[Verijicalion.     See  No.  188.] 

(i)  See  Beach's  Mod.  Eq.  Prac,  Sec.  283;  Foster's  Fed.  Prac,  Sec. 
155- 


REPLICATION.  I97 


REPLICATION. 

No.  218. 

General  Form  (i). 

\Caption.^ 
The  replication  of    the  above-named  plaintiff  to  the  answer 
of  the  above-named  defendant. 

This  replicant,  saving  and  reserving  to  himself  all  and  all 
manner  of  advantage  of  exception  which  may  be  had  and 
taken  to  the  manifold  errors,  uncertainties,  and  insufficiencies 
of  the  answer  of  said  defendants,  for  replication  thereunto 
sayeth  that  he  does  and  will  ever  maintain  and  prove  his 
said  bill  to  be  true,  certain,  and  sufficient  in  the  law  to  be 
answered  unto  by  said  defendants,  and  that  the  answer  of 
said  defendants  is  very  uncertain,  evasive,  and  insufficient  in 
the  law  to  be  replied  unto  by  this  replicant;  without  that,  that 
any  other  matter  or  thing  in  the  said  answer  contained  ma- 
terial or  effectual  in  the  law  to  be  replied  unto,  confessed,  or 
avoided,  traversed,  or  denied,  is  true ;  all  which  matters  and 
things  this  replicant  is  ready  to  aver,  maintain,  and  prove  as 
this  honorable  court  shall  direct,  and  humbly  as  in  and  by 
his  said  bill  he  has  already  prayed.  X.  &  X., 

Solicitors  for  Plaintiflf. 

(i)  See  45th  and  66th  Rules  in  Equity;  Beach's  Modern  Equity 
Prac,  Sec.  480  and  ante;  Barton's  Suits  in  Equity,  144  and  145; 
Story's  Equity  Pleadings  (loth  ed.),  Sec.  878  ;  i.  Daniels  Ch.  Pr.  (stb 
ed.),  830  et  seq. 

The  answer  will  be  taken  as  true  if  no  replication  is  filed  (Trout  -os. 
Emmons  81  Am.  Dec,  326);  and  no  evidence  can  be  given  by  the  com- 
plainant to  contradict  it.  Gallagher,  vs.  Roberts,  i  Wash.,  320;  Pierce 
vs.  West,  Peters  C.  C,  351. 

Under  Rule  No.  66  the  plaintiff  must  reply  to  the  answer  of  every 
defendant,  when  sufficient,  without  reference  to  the  state  of  the  cause 


198  IN   EQUITY. 

or  of  the  pleadings  in  regard  to  any  other  defendant.  The  replication 
must  be  a  general  one,  as  Rule  45  abolishes  special  replications.  Cole- 
man vs.  Martin,  6  Blatchf ,  291. 

Where   a   plaintiff,  instead    of   filing   the   general  replication,  sets 
down  the  cause  for  hearing  upon  bill  and  answer,  this  is  an  admission 
that  everything  well  pleaded   in   the  answer  is  proved.     Parton  vs. 
Prang,  2  Pat.  OflF.  Gaz.,  619. 

Where  the  statute  of  limitations  is  relied  on  as  a  bar,  at  law  or  in 
equity,  and  the  plaintiff  desires  to  bring  himself  within  its  savings,  he 
must  set  forth  the  facts  specially  in  his  replication,  or  by  an  amend- 
ment of  his  bill ;  or  the  existence  of  the  exception,  not  being  an  issue 
between  the  parties,  the  court  can  take  no  notice  of  any  evidence  to  es- 
tablish it.  Piatt  vs.  Vattier,  9  Peters,  405,  and  note  to  Banks'  ed.;  af- 
firming, I  Mcl/ean,  146  ;  Taylor  vs.  Benham,  5  How.,  233.  S.  P.,  Mars- 
teller  vs.  McClean,  7  Cranch,  156. 

A  departure  in  pleading  is  not  allowed  in  equity.  If  the  answer  re- 
quires a  new  case  to  be  made,  it  can  not  be  done  in  the  replication,  but 
must  be  by  an  amendment  of  the  bill.  Vattier  vs.  Hind,  7  Peters,  252; 
reversing,  i  Mclvcan,  no. 

When  a  cause  is  submitted  for  final  decree  upon  the  pleading,  and 
evidence,  and  it  turns  out  that  no  replication  has  been  filed  to  the  an- 
swer, but  that  the  evidence  has  been  taken  as  if  it  had  been  filed,  the 
court  will  trj'  the  case  on  its  own  merits,  notwithstanding  the  want  of 
a  replication,  or  will  allow  one  to  be  filed  instanter.  Jones  vs.  Brittan, 
I  Woods,  657. 

A  decree  under  Rule  38,  dismissing  the  bill  because  of  failure  to  re- 
ply to  a  plea,  or  set  it  down  for  argument,  is  not  a  bar  to  a  subsequent 
action.     Keller  vs.  Stolsenback,  20  Fed.  Rep.,  47. 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  I99 


NOTICES,  MOTIONS,  ORDERS,  DECREES,  Etc. 

No.  219. 

Subpoena  in  Chancery. 
For  form  of  subpoena,  see  No.  33. 


No.  220. 

Motion  for  Additional  Security  for  Costs. 

[Caption.^ 

Now  comes  the  defendant  and  moves  the  court  for  an  order 
requiring  the  plaintiff  to  file  a  bond  as  security  for  costs 
herein.  Y.  &  Y., 

Solicitors  for  Defendant. 


No.  221. 

Cost   Bond. 
For  form  of  bond,  see  No.  36. 


No.  222. 

Appearance. 

For  form  for  appearance,  consult  Nos.  11,  12,  and  13.     See 
also  17th  Ri^le  in  Equity. 


No.  223. 

Order  to  Take  Bill  Pro  Confess©  (i). 

[^Caption  ^ 

The  subpoena  in  the  above  entitled  cause  having  been  re- 
turned, which  return  has  been  filed,  and  it  appearing  theie- 


200  IN    EQUITY. 

from  that  the  said  subpoena  was  duly  served  on  C.  D.,  the 
defendant  herein,  and  no  appearance  having  been  entered 
on  the  part  of  said  defendant,  or  demurrer,  or  plea,  or  answer 
filed,  although  such  appearance  should  have  been  entered  or 

pleading  filed  on  or  before  the day  of ;  therefore, 

on  motion  of  R.  X.,  solicitor  for  the  plaintiflf,  it  is  ordered 
and  decreed  that  the  bill  herein  be  taken  pro  confesso  as  to 
said  defendant. 
Dated . 

(i)  See  1 8th  Rule  in  Equity. 


No.  224. 

Consent  to  Take  Bill  Pro  Confesso. 

\Caption^ 

Whereas  the  bill  in  equity  in  the  above  entitled  cause  was 

filed  in  this  court  on  the day  of ,  and  a  subpoena 

issued  and  duly  served  on  me  in  this  cause  as  required  by 
law  \or^  I  hereby  waive  service  of  subpoena  and  enter  my  ap- 
pearance herein],  and  I  do  not  desire  to  defend  said  action ; 
therefore  I  hereby  consent  that  the  said  bill  be  taken  pro 
confesso^  and  I  hereby  admit  \state  admission]  as  charged  in 
said  bill  [and  I  hereby  consent  that  said  injunction  may 
issue  in  said  action  out  of  this  court  as  prayed  for  in  said  bill 
without  any  further  proof  being  made  or  given  in  said  action], 
and  the  plaintiff  may  attach  this  stipulation  and  confession  to 
the  said  bill,  and  the  same  to  be  binding  and  conclusive  upon 
me,  this  defendant.  C.  D. 


No.  225. 

Decree  Pro  Confesso  (i). 

[Caption.^  % 

It  appearing  to  the  court  that  the  bill  in  equity  in  the 

above  entitled  cause  was  filed  in  this  court  on  the day 

of ,  1894,  and  that  a  subpoena  was  issued  and  duly  served 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  20I 

on  the  defendant  herein  ;  that  no  appearance  has  been  entered 
on  the  part  of  the  defendant,  or  demurrer,  or  plea  or  answer 
filed,  and  that  an  order  taking  the  said  bill  pro  confesso  was 

duly  entered  on  the day  of in  the  order-book,  and 

that  no  proceedings  have  been  had  or  taken  by  said  de- 
fendant since  such  order  was  entered ;  now,  therefore,  more 
than  thirty  days  after  entering  said  order  as  aforesaid,  to  wit, 

on  the day  of ,  it  is  hereby  ordered,  adjudged,  and 

decreed  [insert  the  finding  of  the  court ^ 

(i)  A  decree  taken ^r<?  conjesso  does  not  become  absolute  until  the 
next  term  of  court.     See  19th  Rule  in  Equity. 


No.  226. 
Decree  Pro  Confesso  Sustaining  Patent. 
See  under  title  "Patents." 


No.  227. 

Order  for  Attachment  to  Compel  Answer  (i). 

\Caption?\ 

The  subpoena  issued  in  the  above  cause  having  been  re- 
turned, which  return  has  been  filed,  and  it  appearing  there- 
from that  the  said  subpoena  was  duly  served  on  C.  D.,  the 
defendant  herein,  and  no  appearance  having  been  entered 
on  the  part  of  the  said  defendant,  therefore,  on  motion  of  R. 
X.,  solicitor  for  the  plaintiff,  it  is  ordered  and  decreed  that 
an  attachment  issue  against  the  said  C.  D. 

(i)  See  1 8th  Rule  in  Equity. 

No.  228. 

Attachment  to  Compel  Answer  (i). 

The   President   of  the   United   States   of   America   to   the 

Marshal  of  the District  of ,  Greeting : 

You  are  hereby  commanded  that  you  attach  C.  D.,  if  he 
may  be  found  in  your  district,  and  bring  him  forthwith  f<?r, 


202  IN   EQUITY. 

on  the day  of ,  etc.]  personally  before  the  judge  of 

the  circuit  court  of  the  United  States  for  the district 

of ,  in  the circuit,  held  at  \jiame  place  of  holding 

court\  in  the  city  of ,  in  the  said  district,  to  answer  for 

certain  contempts  in  not  obeying  our  writ  of  subpoena  to 
him  directed,  and  on  him  duly  served,  commanding  him  to 
appear  before  the  said  circuit  court,  in  equity,  on  the  \as  in 
subpcend\^  to  answer  a  bill  of  complaint  exhibited  against  him 
in  the  said  court  by  A.  B.,  and  further  to  perform  and  abide 
such  order  as  our  said  court  shall  make  in  this  behalf;  and 
you  are  further  commanded  to  detain  him  in  your  custody 
until  he  shall  be  discharged  by  the  said  court. 

And  have  you  then  and  there  this  writ. 

Add  teste,,  as  in  No.  31. 

(i)  See  1 8th  Rule  in  Equity. 

No.  229. 

Injunction  Pendente  Lite. 

For  forms  of  Notice,  Motion,  Orders,  etc.,  in  re  Injunction 
pendente  lite^  see  under  title  "  Patents,"  "  Preliminary  In- 
junction." 


No.  230. 

Writs  in  Equity. 

See  under  "  Miscellaneous  Writs  at  Law  and  in  Equity," 
page  21,  ^/  seq. 


No.  231. 

Praecipe  for  Copy. 

\Caption^ 

B.  R.,  Clerk  of  said  Court. 

Please  prepare  a  certified  copy  of  the  bill  of  complaint  [^r, 
answer,  or  other  paper ^  as  may  be^  naming  it\  herein. 

X.  &  Y., 
Attorneys  for . 


NOTICES,    MOTIONS,    ORDERS,    DECREES,   ETC.  303 

No.  232. 

Order  to  Stand  Over  to  Add  New  Parties. 

\Caption?\^ 

This  cause  coming  on  to  be  heard  this day  of , 

and  counsel  for  the  respective  parties  having  been  heard,  and 
it  appearing  to  the  court  that  E.  F.  and  G.  H.  are  necessary 
parties  to  this  cause,  it  is  ordered  that  this  cause  do  stand 
over,  to  the  end  that  the  plaintiflf  may  make  the  said  E.  P. 
and  G.  H.  parties  thereto,  either  by  amendment  or  supple- 
mental bill,  as  he  may  be  advised. 


No.  233. 

Order  to  Stand  Over  to  Supply  Proofs. 

\Caption^ 

This  cause  coming  on  to  be  heard  this day  of 


and  counsel  for  the  respective  parties  having  been  heard, 
and  it  appearing  to  the  court  that  the  plaintiff  has  omitted 
to  introduce  proof  of  \Jiere  state  the  substance  of  what  is 
omitted\  it  is  ordered  that  this  cause  stand  over,  to  the  end 
that  the  plaintiff  may  examine  witnesses  to  prove  \state 
what  plaintiff  has  leave  to  prove']. 


No.  234. 

Motion  for  Leave  to  File  an  Amendment. 

[Caption.'] 

Now  comes  the  plaintiff  \or^  defendant]  herein,  and  begs 
leave  of  the  court  to  file  an  amended  bill  [or^  answer,  <9r,  etc.], 
hereto  attached.  X.  &  Y., 

Solicitors  for . 


No.  235. 

Amendment  to  a  Bill  (i). 

[Caption.] 

And  now  comes  the  plaintiff,  and,  with  leave  of  the  court 
first  had  and  obtained,  amends  his  bill  of  complaint  herein^ 
as  follows: 


204  IN   EQUITY. 

First.  In  the  sixth  line  of  the  second  paragraph  of  said 
bill,  after  the  word  "thereto,"  insert  \here  set  forth  what  is  to 
be  inserted]. 

Second.  At  the  end  of  the  fifth  paragraph  add  the  follow- 
ing: \here  insert  the  additional  matter]. 

Third.  Erase  the  words  \set  them  forth\  in  the  third 
line  of  the  tenth  paragraph  [continue  in  like  manner  to  set 
forth  the  new  matter].  R.  X., 

Solicitor  for  Plaintiff.   - 

(i)  The  amendment  should  not  be  made  by  interlineations  and 
erasures  in  the  original  bill,  but  by  filing  the  same  on  separate  paper ; 
and  the  amended  bill  should  state  no  more  of  the  original  bill  than 
is  necessary  to  make  intelligible  where  the  new  matter  is  to  be 
inserted.    See  also  28th,  29th,  30th,  and  60th  Rules  in  Equity. 


No.  236. 

Amendment  to  Answer. 

Form  No.  235  will  furnish  sufficient  guide  for  an  amend- 
ment to  an  answer.  The  necessary  alterations  can  readily 
be  made. 

See  also  6oth  Rule  in  Equity. 


No.  237. 

Petition  by  Infant  for  Appointment  of  a  Guardian  ad 

Litem. 
[Caption  and  address^ 

The  petition  of  C.  D.,  of ,  the  [or^  a]  defendant  in  this 

suit,  respectfully  shows  that  your  petitioner  is  an  infant 
over  the  age  of  fourteen  years,  to  wit,  of  the  age  of  fifteen 
years  and  upwards ;  that  the  bill  in  this  cause  was  filed  against 
your  petitioner  [and  others]  for  the  foreclosure  of  a  mortgage 
alleged  to  have  been  executed  by  the  father  of  your  petitioner 
(who  is  now  deceased)  in  his  lifetime,  to  the  plaintiff,  and 
praying  for  a  sale  of  the  mortgaged  premises.     And  your 


NOTICKS,    MOTIONS,    ORDERS,    DECREES,    ETC.  205 

petitioner  further  shows  that  she  claims  an  interest  in  the  said 
mortgaged  premises  as  heir  at  law  of  her  father ;  and  that  she 
has  been  served  with  a  subpoena  in  said  cause,  requiring  her 

to  appear  and  answer  the  said  bill,  returnable  on  the day 

of instant. 

Your  petitioner  therefore  prays  that  L.  M.,  a  solicitor  of 

this  court,  residing  in ,  may  be  appointed  the  guardian 

ad  litem  of  your  petitioner,  to  appear  and  defend  this  suit  on 
her  behalf.   And  your  petitioner  will  ever  pray,  etc. 


No.  238. 

Petition  by  Plaintiff  for  Appointment  of  Guardian  ad 
Litem  for  an  Infant  Defendant. 

[^Commence  as  in  preceding  form^ 

The  petition  of  A.  B.,  the  plaintiff  in  this  suit,  respect- 
fully shows  that  the  bill  in  this  suit  was  filed  against  the 
defendant  to  foreclose  a  mortgage  executed  by  the  father  of 
said  defendant  (who  is  now  deceased)  in  his  lifetime,  to  your 
petitioner,  and  praying  for  a  sale  of  the  mortgaged  premises; 
and  that  the  said  defendant  claims  an  interest  in  the  said  prem- 
ises as  heir  at  law  of  her  father.  And  your  petitioner  further 
shows  that  the  said  C.  D.  resides  in ,  and  is,  as  he  is  in- 
formed and  believes,  an  infant  over  the  age  of  fourteen  years, 
to  wit,  of  the  age  of  fifteen  years  and  upwards.    And  that  on 

the day  of ,  a  subpoena  in  this  cause  was  duly  served 

on  the  said  C.  D.,  requiring  her  to  appear  to  and  answer  the 

said  bill,  returnable  on  the day  of last.     And  your 

petitioner  further  shows  that  although  more  than days 

have  elapsed  since  the  appearance  day  mentioned  in  said 
subpoena,  no  guardian  ad  litem  has  as  yet  been  appointed  for 
such  infant,  or  applied  for  by  her  or  any  person  on  her  behalf, 
to  the  knowledge  or  belief  of  your  petitioner. 

Your  petitioner  therefore  prays  that  L.  M.,  the  register  of 
this  court,  may  be  appointed  guardian  ad  litem  of  such  infant 
defendant,  to  appear  and  defend  this  suit  in  her  behalf. 

And  your  petitioner,  etc. 


3o6  IN   EQUITY. 

No.  239. 

Affidavit  to   Obtain   a  Ne  Exeat. 

State  of , 


County  of ,  ss. 

I,  W.  B.,  one  of  the  above-named  plaintiffs,  being  duly 
sworn,  deposes  and  says  that  the  above  defendant  is  actually 

and  justly  indebted  to  the  said  plaintiffs  in  the  sum  of 

dollars,  for  \Jierc  state  the  ground  and  circumstances  of  in- 
debtnient\\  for  the  recovery  of  which  the  said  plaintiffs  did, 

on  the day  of ,  file  their  bill  of  complaint  herein 

against  the  said  defendant;  to  which  said  bill  the  said  de- 
fendant has  not  yet  answered;  and,  being  so  indebted,  the  said 
defendant  has  lately  declared  in  the  presence  of  each  of  the 
plaintiffs,  and  informed  them,  and  this  deponent  verily  be- 
lieves, that  he  will  without  delay  leave  the  United  States  and 
go  to  live  and  reside  in  parts  beyond  the  seas -without  these 
United  States  and  out  of  the  jurisdiction  of  this  court.  And 
this  deponent  has  no  doubt,  but  verily  believes,  that  if  the 
said  defendant  should  be  allowed  to  depart  out  of  this  district, 
the  plaintiffs'  debt  will  either  be  entirely  lost  to  them,  or  the 
recovery  thereof  greatly  endangered. 

Sworn,  etc.  •         W.  B. 

[Certificate  of  allowance.^ 

No.  240. 

Order  for  Writ  of  Ne  Exeat  to  Issue. 

Upon  motion,  etc.,  and  upon  reading  an  affidavit  of,  etc.,  filed, 
etc.  [if  before  appearance^  and  the  clerk's  certificate  of  the 

filing  of  the  plaintiff's  bill  in  this  cause  on  the day  of 

] ;  and  the  plaintiff  by  his  counsel  undertaking,  etc.  \as 

to  damages^.  This  court  orders  that  a  writ  [^r,  one  more 
writ,  or^  writs]  of  ne  exeat  republica  do  issue  against  the  said 
defendant  A.  B.,  until  this  court  make  another  order  to  the 
contrary ;  and  the  said  writ  \or^  writs]  is  \or^  are]  to  be  marked 
for  security  in  the  sum  of dollars. 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  207 

No.  241. 

^V^it  of  Ne  Exeat. 
For  fonn  of  Writ,  see  No.  66. 


No.  242. 

Bond  to  Sheriff  upon  a  Ne  Exeat. 

Know  all  men  by  these  presents  that  we,  C.  D,,  of  the  city 

of ,  and  E.  F.  and  G.  H.,  of  the  same  place,  are  held  and 

firmly  bound  unto  H.  C,  United  States  Marshal  for  the 

district  of ,  in  the  penal  sum  of dollars,  to  be  paid 

to  the  said  H.  C,  United  States  Marshal  for  the district 

of ,  as  aforesaid,  or  his  assigns.       For  which  payment 

well  and  truly  to  be  made  we  bind  ourselves  jointly  and 
severally,  and  our  and  each  of  our  heirs,  executors,  and 
administrators,  firmly  by  these  presents.  Sealed  with  our 
seals,  and  dated  the day  of ,  i8 — . 

Whereas,  the  above-named  C.  D.  has  been  arrested  upon  a 
writ  of  ne  exeat  issuing  out  of  and  under  the  seal  of  the 

circuit  court  of  the  United  States   for   the district  of 

,  in  a  certain  cause  therein  pe'nding,  wherein  A.  B,  is 

plaintiflf,  and  the  said  C.  D.  is  defendant,  and  is  now  in 
custody  of  the  said  H.  C,  marshal  as  aforesaid,  by  virtue 
thereof: 

Now,  the  condition  of  this  obligation  is  such,  that  if  the 

said  C.  D.  shall  not  depart  from  or  leave  this district 

of without  the  permission  of  the  said  court,  then  this 

obligation  to  be  void;  otherwise  to  be  and  remain  in  full 
force  and  virtue,  C.  D.  [^^a/.] 

E.  F.  \seai:\ 
G.  H.  \seai:\ 

[For  acknowledgment  and  justification  of  sureties  see  No. 
36-] 


J}08  IN    EQUITY. 

No.  243. 

Notice  of  Motion  for  the  Discharge  of  Ne  Exeat. 

[^Caption!] 

Take  notice  that  this  honorable  court  will  be  moved  before 
[name  judge  and  court\^  on ,  the  day  of in- 
stant [or,  next],  at  o'clock    in  the  noon,    on    the 

part  of  the  defendant,  C.  D.,that  the  writ  of  ne  exeat  republica 

issued  against  him  pursuant  to  the  order  dated  the day 

of ,  1894,  and   the  said  order,  maybe  discharged  with 

costs,  including  the  costs  of  this  application ;  and  that  the 
plaintiff  may  be  ordered  to  pay  such  costs  to  the  said  defend- 
ant,— If  so;  and  that  the  bond  given  by  the  said  defendant 

to  the  of ,  pursuant  to   the  said  order  and  writ, 

may  be  delivered  up  to  be  canceled.  And  that  an  inquiry 
may  be  made  what  damages  have  been  sustained  by  the 
said  defendant  by  reason  of  the  said  order  having  been  made. 
And  that  the  plaintiflf  may  be  ordered,  pursuant  to  his  un- 
dertaking, contained  in  the  said  order,  to  pay  to  the  said 
defendant,  within  (one  month)  after  the  date  of  the  master's 
certificate  of  the  result  of  such  inquiry,  what  shall  be  thereby 
certified  in  respect  of  such  damages. 


No.  244. 

Motion  to  Assign  Time  within  which  Parties   shall   take 

Evidence. 

\Caption.'] 

Now  comes  the  plaintiff  \or,  defendant]  herein,  and 
moves  the  court  to  assign  a  time  within  which  the  parties 
respectively  shall  take  their  evidence.  X.  &  Y., 

Solicitors  for . 


No.  245. 

An  Order  Assigning  Time  within  which  to  take 
Testimony, 
[Caption?^ 
The  above-named  cause  coming  on  this day  of  - 


) 


to  be  heard  on   motion  of  plaintiff  [<?r,  defendant]  for   an 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  209 

order  to  assign  time  within  which  the  parties  respectively 
shall  take  their  evidence,  and  counsel  being  heard  for  the 
respective   parties,  it   is    hereby  ordered    that    the  plaintiff 

shall  have  until  the day  of ,  1894,  within  which  to 

take  his  evidence  in  chief,  and  that  the  defendant  thereafter 

shall  have  until  the day  of ,  within  which  to  take 

kis   evidence,  and   that   the  plaintiflf  thereafter  shall  have 

until  the day  of ,  in  which  to  take  his  evidence  in 

rebuttal. 


No.  246. 

Letters  Rogatory  (i). 

The  United  States  of  America, 
District  of ,  ss. 


The  President  of  the  United  States  to  any  Judge  or  Tribunal 
having  jurisdiction  of  civil  causes  at  Havana,  Greeting: 

Whereas  a  certain  suit  is  pending  before  us  in  which  L.  M. 
and  J.  T.  are  the  claimants  of  the  schooner  P.  and  cargo,  and 
the  United  States  of  America  are  the  defendants;  and  it  has 
been  suggested  to  us  that  there  are  witnesses  residing  within 
your  jurisdiction  without  whose  testimony  justice  can  not 
completely  be  done  between  the  said  parties : 

We  therefore  request  you  that  in  furtherance  of  justice  you 
will,  by  the  proper  and  usual  process  of  your  court,  cause 
such  witness  or  witnesses  as  shall  be  named  or  pointed  out  to 
you  by  the  said  parties,  or  either  of  them,  to  appear  before 
you,  or  some  competent  person  by  you  for  that  purpose  to  be 
appointed  and  authorized,  at  a  precise  time  and  place  by  you 
to  be  fixed,  and  there  to  answer  on  their  oaths  and  affirmations 
to  the  several  interrogatories  hereunto  annexed ;  and  that  you 
will  cause  their  depositions  to  be  committed  to  writing  and 
returned  to  us  under  cover,  duly  closed  and  sealed  up  together 
with  these  presents;  and  we  shall  be  ready  and  willing  to 
do  the  same  for  you  in  a  similar  case  when  required. 

[Add  teste.    See  Nos.  30  and  31.] 

(i)  See  R.  S.,  Sees.  875,  4071,  4074  ;  Desty's  Fed.  Proc.,  Sec.  394. 


2IO  IN    EQUITY. 

No.  247. 

Letters  Rogatory  (i). 

The  United  States  of  America, 
District  of ,  ss. 


The  President  of  the  United  States  of  America  to  the  Presi- 
dent of  the  Court  at   ,  in  the   Kingdom  of , 

Greeting : 

Whereas  a  certain  suit  is  pending  in  our  circuit  court  for 

the district  of ,  in  which  A.  B.,  as  administrator  of 

the  estate  of  A.  N.,  deceased,  is  plaintiff,  and  the  C.  D.  Rail- 
road Company  is  defendant,  and  it  has  been  suggested  to  us 
that  justice  can  not  completely  be  done  between  the  said 
parties  without  the  testimony  of  E.  F.,  G.  H.,  and  1.  J.,  all  of 
whom  reside  at ,  within  your  jurisdiction: 

We  therefore  request  you  that  in  furtherance  of  justice  you 
will,  by  the  proper  and  usual  process  of  your  court,  cause 
said  E.  F.,  G.  H.,  and  1.  J.  to  appear  before  you,  or  some 
competent  person  by  you  for  that  purpose  to  be  appointed  and 
authorized,  at  a  precise  time  and  place  by  you  to  be  fixed, 
then  and  there  to  make  answer  on  their  oaths  and  affirmations 
to  the  several  interrogatories  hereunto  annexed ;  and  that  you 
will  cause  their  depositions  to  be  committed  to  writing  and 
to  be  returned  to  us  under  cover,  addressed  to  the  clerk  of  the 

circuit  court  of  the  United  States  for  the district  of , 

at  the  city  of ,  and  state  of ,  in  the  United  States  of 

America,  duly  closed  and  sealed  up  together  with  these 
presents;  and  we  shall  be  ready  and  willing  to  do  the  same 
for  you  in  a  similar  case  when  required. 

[Add  teste.    See  No.  31.] 

(i)   See  note  to  No.  246. 


No.  248. 

Order  for  Dedimus  Potestatem. 

\Captioii?\ 

On  reading  and  filing  affidavit  of  plaintiff's  attorney  and 
notice  of  motion,  with  proof  of  due  service  thereof  on  attor- 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  211 

neys  for  the  defendant,  A.  R.,  who  only  has  appeared  herein, 
J.  H.,  Esq.,  appearing-for  the  plaintiff,  and  R.  Y.,  Esq.,  for  the 
defendant,  A.  R.: 

It  is  on  motion  of  J.  H.,  Esq.,  United  States  attorney, 
ordered  that  a  dedimus  potestatem  be  issued  in  this  cause  out 
of  this  court,  directed  to  the  United  States  consul,  and  to 
such  deputy  or  representative  of  said  consul  as  may  be  au- 
thorized by  him  to  act  in  his  place  and  stead,  at  the  follow- 
ing named  places,  respectively,  viz.:  [jtame  them  as]  To  E.  P., 
United  States  consul  at  Aix-la-Chapelle  (Aachen),  Germany, 
and  his  deputy  or  representative ;  to  examine  the  following 
named  persons  under  oath  as  witnesses  herein,  viz.  [name 
theni\  . 

It  is  further  ordered  that  the  examination  above  provided 

for  shall  take  place  during  the  months  of and ,  and 

at  such  times  within  said  months  as  is  hereinafter  desig- 
nated. 

It  is  further  ordered  that  either  party  to  this  action  shall 
have  liberty  to  examine  not  only  the  witnesses  herein  named, 
but  any  other  witnesses  that  either  party  may  desire  to  ex- 
amine at  the  aforesaid  places  of  \iiam£  them\^  before  either 
of  the  persons  herein  authorized  to  take  testimony ;  provided, 
however,  that  the  names  of  said  witnesses  and  their  places 
of  residence  shall  be  given  to  the  attorney  of  the  opposite  side 

in ,  before  the day  of ,  or  such  notice  be  given  in 

Europe  to  the  opposite  counsel  acting  there  for  either  party 
to  this  action  in  either  of  the  aforesaid  places  of  \name  them], 
where  such  other  witnesses  are  to  be  examined,  two  days 
before  such  examination. 

It  is  further  ordered  that  prior  to ,  the  attorneys  for 

the  respective  parties  shall  give  notice  in ,  each  to   the 

other,  of  the  names  and  European  address  for  the  last  week 

in ,  of  the  counsel  for  the  respective  parties,  who  are  to 

take  testimony  under  this  commission. 

It  is  further  ordered  that  the  examination  of  witnesses 
shall  be  had  at  the  following  places  in  the  following  order, 


212  IN    EQUITY. 

and  not  otherwise,  viz.:     First  at ,  next  at ,  next  at 

,  etc.;  that  the  examination  shall  commence  at on 

the  —  day  of ,  or  within  two  days  thereafter ;  and  that 

no  examination  shall  be  made  of  witnesses  at  any  place  after 
the  examination  has  been  finished  at  that  place,  or  the  exam- 
ination of  witnesses  commenced  at  another  place. 

It  is  further  ordered  that  the  counsel  for  the  plaintiff  shall 
have  with  him,  at  any  and  all  said  examinations  of  said  wit- 
nesses, or  either  of  them,  all  the  original  invoices  mentioned 
in  the  declaration  herein,  or  copies  or  duplicates  thereof,  and 
which, are  in  the  possession  of  the  plaintiff,  and  that  counsel 
for  defendant  shall  have  full  and  free  inspection  thereof,  and 
liberty  to  take  copies  of  the  same. 

It  is  further  ordered  that  all  directions  herein  contained  as 
to  time,  place,  order,  and  manner  of  examination  of  said 
witnesses  may  be  changed  or  modified  by  the  written  consent 
of  the  counsel  for  the  respective  parties  in  Europe  or  in . 

It  is  further  ordered  that  the  examination  of  all  witnesses 
under  this  commission  shall  be  oral,  or  taken  by  question 
and  answer  in  the  usual  manner  of  taking  oral  depositions  by 
examination,  cross-examination,  and  redirect  examination ; 
that  the  testimony  given  under  such  examination  shall  be 
reduced  to  writing,  signed  by  the  witnesses  and  certified  by 
the  commissioners  respectively,  and  by  them  transmitted  by 

mail  to  the  clerk    of  this  court  at  the  city  of ,  unless 

otherwise  mutually  agreed  upon  by  said  counsel  for  both 

parties. 

•    It  is  further  ordered  that  all  testimony  taken  under  the 

commission  provided  for  herein  shall  be  taken  subject  to  all 

legal  objections  at  the  trial  of  this  action.  G.  W., 

Judge  of  the  District  [^r,  Circuit]  Court 
for  the District  of . 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  213 

No.  249. 

Order  to  Show  Cause  why  the  Time  for  Taking  Testimony 
should  not  be  Extended  (i). 

On  reading  the  affidavits  of  S.  D.  and  E.  M.,  and  on 
motion  of  R.  Y,,  solicitor  for  defendant  in  the  above-entitled 
suit,  it  is  hereby  ordered  that  copies  of  the  same,  with  a  copy 
of  this  order,  be  served  on  the  solicitor  for  the  plaintiff  in  the 

above  suit  on  or  before  the day  of ,  1894,  and  that 

the  said  plaintiff  show  cause,  if  any  he  have,  at ,  in  the 

city  of ,  on  the day  of ,  1894,  at  10  o'clock,  a.m., 

why  the  time  allowed  for  taking  testimony  on  behalf  of  the 
defendant  in  the  said  cause  should  not  be  extended  to  and 
including  the day  of ,  1894. 

(i)  See  69th  Rule  in  Equity. 


No.  250. 

Order  Extending  the  Time  for  Taking  Testimony. 

{Caption^ 

On  reading  and  filing  the  defendant's  order  to  show  cause, 
and  the  affidavits  of  S.  D.  and  E.  M.  thereto  annexed,  and 
after  hearing  R.  X.,  Esq.,  for  the  plaintiff,  and  R.  Y.,  Esq.,  for 
the  defendant,  it  is  ordered  that  the  time  allowed  for  taking 
testimony  on  behalf  of  the  defendant  in  the  above-entitled 

cause,  be  extended  to  and  including  the day  of , 

1894,  and  that  the  plaintiff  have days  thereafter  within 

which  to  take  testimony  in  rebuttal. 


No.  251. 

Notice  of  Motion  for  Appointment  of  Special  Examiner  (i). 

[^Caption!] 
R.Y., 

Solicitor  for  Defendant. 

Please  take  notice  that  at  a  stated  \or^  special]  term  of  this 
court,  to   be   held    on    the day   of ,  1894,  at  


214  IN   EQUITY. 

\place  of  holding  couri\  the  plaintiff  in  this  cause  will  move 
at  lo  o'clock  in  the  forenoon,  or  as  soon  thereafter  as  counsel 
can  be  heard,  for  an  order  that  J.  N.,  Esq.,  of ,  be  ap- 
pointed special  examiner  herein,  under  the  67th  Rule  as 
amended,  to  take  the  deposition  of  witnesses  in  behalf  of 
said  plaintiff.                                                              X.  &  X., 

Dated .  Solicitors  for  Plaintiflf. 

Service  accepted,  etc.  [as  in  No.  14]. 

(i)  See  67th  Rule  in  Equity,  as  amended  May  3,  1892.  Notaries 
public  are  authorized  by  statute  to  take  depositions  to  be  used  in  the 
courts  of  the  United  States.  See  19  Stat,  at  L.",  206  ;  Desty's  Fed.  Proc, 
Sees.  381  and  381^!;  but  there  is  some  doubt  whether  a  notary  is 
authorized  to  take  depositions  under  the  67th  Rule  in  Equity  unless 
by  consent  of  counsel  or  appointment  of  court  he  is  made  a  special 
examiner. 


No.  252. 
Order  Appointing  Special  Examiner. 

[Caption?^ 

Upon  reading  and  filing  notice  of  motion,  with  admission 
of  service,  and  on  motion  of  R.  X.,  solicitor  for  plaintiff  \or^ 
defendant],  no  one  opposing,  it  is  ordered  that  J.  N.,  Esq., 

of ,  be  and  is  hereby  appointed  special  examiner,  under 

the  67th  Rule  as  amended,  to  take  the  depositions  of  wit- 
nesses on  the  part  of  the  plaintiflf  [<??-,  defendant]  in  this 
cause. 


No.  253. 

Notice  of  Oral   Examination   (i). 

[Caption?^ 
Y.  &  Y., 

Solicitors  for  Defendant. 

Please  take  notice  that  the  plaintiff  in  the  above  cause 
desires  the  evidence   to    be    adduced    therein   to  be   taken 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  215 

orally  under  the  67th  Rule  in  Equity,  as  amended;  and  you 
will  further  take  notice  that  by  an  order  made  in  said  cause 
by  J.  N.,  Esq.,  one  of  the  examiners  of  said  court,  the 
examination  of  witnesses  on  the  part  of    the    said  plaintiff 

will  take  place  before  said  examiner  at ,  in   the  city  of 

,  on  the day  of ,  1894,  at  10  o'clock  a.  m.,  and 

proceed  as  the  said  examiner  may  direct. 

X.  &  X., 
Solicitors  for  Plaintiff. 

Dated . 

Service  accepted,  etc.  [as  in  No.  14]. 

(i)  See  67th  Rule  in  Equity,  as  amended. 


No.  254. 

Notice  of  Deposition  under  United  States  Revised 
Statutes  (i). 

[Caption?^ 

Y.  &  Y., 

Solicitors  for  Defendant. 
Please  take  notice    that  the  plaintiff  herein  will  take  the 
testimony  of  E.  F.,    G.  H.  and  I.  J.,  all    of  whom   reside 

at  the  city  of ,  and  state  of ,  and  others,  each  and 

all  of  whom  reside  more  than  one  hundred  (100)  miles  from 
the  place  of  trial  herein,  and  more  than  one  hundred  (100) 
miles  from  any  place  at  which  a  circuit  court  of  the  United 

States  for  the district  of is  appointed  to  be  held 

by  law,  at  the  final  hearing  for  use  on  behalf  of  the  plaintiflf, 
before  J.  N.,  Esq.,  a  notary  public  in  and  for  the  county  of 

,  who  is  not  of  counsel  nor  interested  in  this  cause,  at 

the  oflBce  of  X.  &  X.,  at  No. ,  street,  in  the  city  of 

,  and  state  of ,  on  the  day  of  ,    at    11 

o'clock  a.  m.,  and  thereafter  from  day  to  day  as  the  taking 
of  the  depositions  may  be  adjourned  ;  and  such   testimony 


2l6  PN    EQUITY. 

will  be  so  taken  in  accordance  with  the  provisions  of 
sections  863,  864,  and  865  of  the  Revised  Statutes  of  the 
United  States  and  the  equity  rules. 

X.  &  X., 
Solicitors  for  Plaintiff, 
Dated  at .  No St., , 

(i)  See  R.  S.,  Sees.  863,-864,  and  865 ;  Desty's  Fed.  Proc,  Sees.  382,383, 
and  384,  and  cases  there  cited ;  70th  Rule  in  Equity  ;  see  also  Foster's 
Fed.  Prac,  Sec.  280. 

No.  255. 
Notice  to  Take  Depositions  under  67th  Rule  in  Equity. 

[^Caption^ 

The  plaintiff  [or^  defendant]  will  take  notice  that  the  de- 
fendant \or^  plaintiff]  will  examine  witnesses  in  the  above 
entitled  cause,  under  the  67th  Rule  in  Equity,  as  amended 
(i),  before  J.  W.,  Esq.,  [official  title^  as   special    examiner, 

or  as  may  de],  at  his  office  at street,  in ,  on , 

the day  of ,   18 — ,  beginning  said  examination  at 

10  o'clock  a.  m.  of  said  day,  and  continuing  from  day  to  day 
until  completed.  R.  X., 

Solicitor  for  Plaintiff  [or,  Defendant]. 

Service  accepted  this day  of ,  1894. 

R.  Y., 
Solicitor  for  Defendant  [or,  Plaintiff]. 

(i)  Amendments  of  1861  and  1891,  and  May  3,  1892.  As  to  the 
regularity  of  proceedings  before  an  examiner,  see  Fisher  vs.  Hayes,  6 
Fed.  Rep.,  86.     See  note  to  No.  251. 


No.  256. 

Affidavit  of  Service  of  Notice  (i). 


State  of 


County  of ,  ss. 

On  the day  of ,  1894,  I  served  the  within  notice 

on  R.  Y.  by  handing  a  copy  of  the  same  to  him  [or  say,  by 


NOTICES,   MOTIONS,   ORDERS,    DECREES,    ETC.  217 

leaving  a  copy  of  the  same  at  his  residence  <?r,  place  of  busi- 
ness, as  may  de],  at  No. , street,  in  the  city  of . 

S.  D. 
Subscribed  and  sworn  to  before  me  this day  of 


1894.  J.  N., 

[Seal.]  {Official  Title:\ 

(i)  This  affidavit  may  be  indorsed  on  any  notice,  but  it  is  not  often 
necessary  to  make  affidavit  of  service,  as  counsel  usually  will  admit 
service  of  notice. 


No.  257. 

Subpoena  to  Testify  before  an  Examiner. 
For  form  of  Subpoena,  see  No.  39. 


No.  258. 

Subpoena  Duces  Tecum. 
For  form  of  Subpoena  Duces  Tecum,  see  No.  40. 


No.  259. 

Commencement  for  Depositions  (i). 

Circuit  Court  of  the  United  States,  for  the 

— ^District  of . 

A.  B.,  Plaintiff, 


} 


vs.  \  In  Equity.  No. 

C.  D.,  Defendant. 

Examination  of  witnesses,  beginning 5I894,  at  No. 

street,  in ,  before  J.  N.  [official  title ^  as,  notary  public 


in   and  for county,  state  of ,  special   examiner  by 

agreement  of  counsel  (2)  ]  on  behalf  of  the  plaintiff  [or, 
defendant],  under  the  67th  Rule  of  Equity,  as  amended,  pur- 
suant to  notice. 

Present  R.  X.,  Esq.,  counsel  for  the  plaintiflf,  and  R.  Y., 
Esq.,  counsel  for  the  defendant. 


2l8  IN    EQUITY. 

By  request  of  parties,  it  is  ordered  that  these  depositions 
be  taken  by  question  and  answer. 

G.  H.  a  witness  produced  on  behalf   of   the ,  being 

first  duly  sworn,  deposes  and  says,  in  answer  to  interroga- 
tories propounded  to  him  by  Mr.  X.,  of  counsel  for  the , 

as  follows : 

Question  i.  State  your  name,  age,  residence,  and  occu- 
pation. 

Answer,  etc. 

(i)  Consult  Form  No.  2^. 
(2)   See  note  to  No.  251. 

No.  260. 

Certificate  at  Close  of  Depositions  (i). 

[The  United  States  of  America,  for  the 
District  of ,]  or^ 


State  of 


County  of ,  ss. 

I,  J.  ^.^  [official  title]  hereby  certify  that  the  above  wit- 
nesses, G.  H.,  S.  L.,  and  A.  H.,  were  by  me  first  duly  sworn 
to  testify  the  truth,  the  whole  truth,  and  nothing  but  the 
truth ;  that  their  depositions  were  reduced  to  writing  by 
Miss  A.  M.  in  the  presence  of  the  said  witnesses  respectively, 
and  when  completed  read  over  to  said  witnesses  respect- 
ively, and  subscribed  by  them  in  my  presence  and  in  the 
presence  of  such  of  the  parties  and  counsel  as  attended  ;  that 
said  depositions  were  taken  pursuant  to  the  annexed  notice, 

at  the  ofiice  of  J.  N.,  at ,  beginning  on  the day  of 

,  1894,  and   continuing  from  day    to    day   as  set  forth ; 

that  the  parties  were  represented  at  the  taking  of  said  depo- 
sition by  their  respective  counsel  as  set  forth  ;  that  the  sev- 
eral exhibits  recited  were  offered  in  evidence  and  marked  as 
specially  noted  in  the  foregoing  depositions  ;  and  that  I  am 
not  counsel  or  relative  of  either  party,  or  otherwise  inter- 
ested in  the  event  of  this  suit. 


NOTICKS,    MOTIONS,    ORDERS,    DECREES,    ETC.  2 19 

In  testimony  whereof  I  have  hereunto  set  my  hand  and 

official  seal,  this day  of ,  1894.  J-  N., 

\Official  title  ^ 
FEES. 

Notary, folios  at  20c.  % ;  paid  by . 

Witnesses, . 


Mileage, ;  paid  by- 

(i)  Consult  Form  No.  25. 


No.  261. 

Transmission  of  Depositions. 
For  form,  see  No.  26. 


No.  262. 

Decretal  Order  for  Sale. 

An  order  of  "sale  as  in  suits  at  law  "  is  often  inserted  in  a 
decree.     For  form  of  Order  for  Sale,  consult  No.  44. 


No.  263. 

Marshal's  Appraisement  of  Real  Estate. 
For  form,  see  No.  45. 


No.  264. 
Report  of  the  Marshal  of  Sale. 
For  form,  see  No.  46. 


No.  265. 
Notice  of  Application  for  Trial. 

\Caption^ 
To  Y.  &  Y., 

Attorneys  for  Defendant  \or^  Plaintiflf  ]. 

Please  take  notice  that  on  the day  of ,  1894,  we 

will  apply  to  the  clerk  of  said  court  to  have  the  above  cause 


220  IN    EQUITY. 

noted  for  trial  at  the   April   [or  as  may  be\  Term  thereof, 
1894.  X.  &  X., 

Attorneys  for  Plaintiff  [or,  Defendant]. 
Service  of  the  above  notice  is  hereby  acknowledged  this 

day  of ,  1894.  Y.  &  Y., 

Attorneys  for  Defendant  [<?r,  Plaintiff]. 


No.  266. 

Notice  of  Final  Hearing. 
[Caption^ 

Y.  &  Y., 

Solicitors  for  Defendant. 

Please    take  notice  that  under  the  order  entered  in  the 

above-entitled   cause    on  the  day  of ,   1894,  said 

cause  will  be  brought  on  for  final  hearing  upon  the  plead- 
ings, proofs,  and  proceedings  herein,  before  the  Judg^  of 
this  honorable  court,  at  a  stated  term  thereof  to  be  held  at 

,  in  the  city  of ,  on  the day  of next,  at 

the  opening  of  the  court  on  that  day,  or  as  soon  thereafter 
as  counsel  can  be  heard.  X.  &  X., 

Dated .  Solicitors  for  Plaintiff. 

Service,  etc.  \as  in  No.  265]. 


No.  267. 

Stipulation  to  Submit  Cause  on  Printed  Briefs. 
\Capiion^^ 

It  is  hereby  stipulated  and  agreed  that  this  cause  be  sub- 
mitted to  the  court  on  printed  arguments;  the  plaintiff's 
counsel  to  serve  his  argument  within days,  and  the  de- 
fendant's counsel  to  answer  the  same  within days  there- 
after, and  the  plaintiff's  counsel  to  reply  within days 

after  the  defendant's  counsel's  arguments  shall  have  been 
served. 

Dated  this day  of ,  at .  R.  X., 

Solicitor  for  Plaintiff. 
R.  Y., 
Solicitor  for  Defendant. 


NOTICES,   MOTIONS,   ORDERS,   DECREES,   ETC.  221 

No.  268. 
Pinal  Decree  Dismissing  Bill. 

This  cause  having  come  on  to  be  heard  this day  of 

-,  upon  pleadings  and  proofs,  and  Mr.  R.  X.  having  been 


heard  on  the  part  of  the  plaintiff,  and  Mr.  R.  Y.  on  the  part 
of  the  defendant,  and  due  deliberation  having  been  had,  it  is 
ordered,  adjudged,  and  decreed  that  the  said  bill  of  complaint 
herein  be  and  the  same  is  hereby  dismissed,  with  costs  to  the 
defendant  to  be  taxed. 


No.  269. 

Decree  of  Dismissal  of  Bill  (another  form). 

This  cause  coming  on,  etc.,  this  court  doth  order  that  the 
plaintiff's  bill  do  stand  dismissed  out  of  this  court  \i/  there 
are  other  defendants  who  do  not  appear^  or  if  dismissed  against 
one  of  several  defendants^  as  against  the  defendant  C.  D.], 
with  costs  to  be  paid  by  the  plaintiff  A.  B.,  to  the  said  de- 
fendant C.  D.,  and  to  be  taxed  by  the,  etc.,  \in  case  the  parties 
differ\ 

No.  270. 

Decree  of  Dismissal  Without  Prejudice,  Stating  Reasons. 

This  cause  came  on  to  be  heard  at  this  term  and  was  ar- 
gued by  counsel ;  and  thereupon,  upon  consideration  thereof, 
it  is  ordered,  adjudged,  and  decreed  by  the  court  that  the 
plaintiff  is  entitled  to  no  specific  lien  or  security  upon  either 
of  the  vessels  mentioned  in  the  plaintiff's  bill,  and  has  no 
equity  to  be  relieved  in  respect  thereof,  and  that  his  bill  be 
dismissed,  with  costs  to  the  defendants,  without  prejudice  to 
his  right  to  come  in  and  receive  a  dividend  of  the  said  R.'s 
estate  in  common  with  the  other  creditors  of  the  said  estate. 


222  IN   EQUITY. 

No.  271. 

Decree  Rescinding  Contract  for  Fraud. 

\^Caption.~\ 

This  cause  came  on  to  be  heard  at  this  term,  and  was  ar- 
gued by  counsel,  and  thereupon,  upon  consideration  thereof, 
it  is  declared  by  the  court  that  the  contract  of  sale,  and  the 
conveyance  of  the  premises,  and  the  notes  of  the  said  O.  D. 
thereupon,  as  set  forth  in  the  bill,  were  made  by  and  be- 
tween the  said  O.  D.  and  the  said  J.  T.  and  other  parties, 
upon  material  representations  and  mutual  mistakes  as  to  the 
quality  of  timber  on  the  premises  so  sold,  and  therefore 
ought  to  be  set  aside,  and  held  null  and  void  ;  and  the  said  O. 
D.  ought  to  be  repaid  the  amount  of  the  said  purchase- 
money  actually  paid  by  him  thereupon  and  therefor  by  the 
said  J.  T.,  who  received  the  notes  for  the  same,  and  in  his  aid 
and  for  his  relief,  by  such  of  the  other  parties,  defendants  to 
the  bill  respectively,  for  whom  the  said  J.  T.  acted  as  agent, 
or  who  with  a  full  knowledge  of,  and  assent  to,  the  said  con- 
tract of  sale  and  misrepresentations  and  mistakes,  have 
received  any  of  the  said  notes,  or  any  part  of  the  purchase- 
money  paid  thereon  by  the  said  O.  D.;  but  not  for  the  part 
thereof  received  by  any  other  party.  And  thereupon,  in  fur- 
therance of  the  declarations  aforesaid,  it  is  further  ordered, 
adjudged,  and  decreed  that  the  same  contract  of  sale,  and 
conveyance,  and  notes,  be,  and  hereby  are,  annulled,  re- 
scinded, and  declared  utterly  void  and  of  no  effect. 

And  the  said  O.  D.  is  further  ordered,  adjudged,  and  decreed 
to  convey  the  premises  by  such  due  and  reasonable  convey- 
ance or  conveyances  as  shall  be  devised  and  reported  by  a 
master,  when  and  so  soon  as  the  purchase-money  actually 
paid  by  him  shall  be  repaid  as  hereinafter  mentioned. 

And  it  is  further  ordered,  adjudged,  and  decreed  by  the 
court  that  the  said  J.  T.  be,  and  hereby  is,  held  directly  liable 
to  the  plaintiff  for  the  whole  amount  of  moneys  paid  as  afore- 
said; deducting,  however,  therefrom  the  proceeds  of  timber 
sold,  as  well  as  the  value  of  timber  taken  from  said  lands  by 


NOTICES,  AIOTIONS,    ORDERS,    DECREES,    ETC.  223 

and  under  the  authority  of  the  said  O.  D.,  and  remaining 
unsold,  and  making  all  due  allowances  for  all  proper  charges 
and  expenses  incurred  in  regard  to  said  timber,  and  for  taxes 
paid  on  the  said  lands. 

And  it  is  further  ordered,  adjudged,  and  decreed  that  such 
of  the  other  parties,  defendants  to  said  bill,  as  with  a  full 
knowledge  of  the  premises,  or  for  whom  the  said  J.  T.  acted 
as  agent,  or  who  assented  to  the  said  contract  of  sale  and 
conveyance,  with  a  full  knowledge  of  the  premises,  shall  be, 
and  hereby  are,  decreed  to  be  liable  in  aid  and  relief  of  the 
said  J.  T.  to  pay  and  deliver  back  to  the  said  O.  D.  such  parts 
or  portions  of  the  purchase -money  paid  by  the  said  O.  D.  for 
the  said  lands  as  have  been  received  by  them  respectively  in 
the  premises,  or  on  the  notes  of  the  said  O.  D.  so  received 
by  them ,  but  no  one  of  them  to  be  liable  for  any  purchase- 
money  or  notes  received  by  any  of  the  other  parties  defend- 
ants. 

And  it  is  further  ordered,  adjudged,  and  decreed  by  the  court 
that  no  damage  or  interest  on  the  aforesaid  moneys  be  al- 
lowed, except  the  proceeds  of  such  timber,  sold  and  unsold, 
as  aforesaid,  shall  furnish  a  fund  therefor ;  and  in  that  event, 
interest  upon  said  purchase-money  to  be  added  thereto  as  an 
offset  pro  tanio  to  the  excess  of  said  proceeds,  not  exceeding 
the  amount  of  such  excess. 

And  it  is  further  ordered,  adjudged,  and  decreed  by  the 
court  that  it  be  referred  to  S.  L.,  Esquire,  as  master,  to  ascer- 
tain the  amount  due  to  the  plaintiff  on  the  basis  of  this  de- 
cree, and  also  the  particular  notes  and  sums  received  by  each 
of  said  defendants  of  said  purchase-money,  so  paid  and  se- 
cured as  aforesaid,  and  to  report  the  same  to  the  court. 

And  it  is  further  ordered,  adjudged,  and  decreed  by  the 
court  that  the  master  be  clothed  with  full  power  to  examine, 
as  well  the  parties  as  any  other  witnesses,  orally  or  upon 
written  interrogatories,  under  oath,  in  the  premises,  and  to 
require  the  production  of  all  vouchers,  papers,  and  other 
documents  pertinent  and  proper  in  the  premises ;  and  that 


224  ^^    EQUITY. 

he  state  a  full  account  in  the  premises  upon  the  basis  of  this 
decree.  And  that  he  be  clothed  with  all  the  usual  powers 
and  authorities  of  a  master  in  all  things  touching  the  prem- 
ises. 

And  all  further  orders  and  decrees  are  reserved  for  the 
consideration  of  the  court. 


No.  272. 

Decree  for  Specific  Performance  of  Agfreement  for  Policy 

of  Insurance. 
[Caption^ 

This  case  was  thence  continued  from  term  to  term  until 

this  present  term  ;  when,  to  wit,  on  the day  of ,  the 

same  came  on  to  be  heard  on  the  bill  and  answer  and  proofs 
in  the  case,  and  was  argued  by  counsel. 

And  it  appearing  to  the  court  that  the  plaintiffs,  through 
their  agent,  made  a  proposal  in  writing  for  insurance  which 
contained  all  the  necessary  terms  of  a  valid  contract  for  a 
policy,  and  that  the  defendants  accepted  this  proposal. 

That  this  acceptance  made  a  legal  contract  between  the 
parties,  which  it  is  the  duty  of  the  court  to  order  to  be  spe- 
cifically performed. 

That  as  it  is  admitted  that  the  plaintiffs  would  have  a  good 
cause  for  action  at  law  upon  a  policy,  if  issued  in  pursuance 
of  the  contract,  there  should  be  decreed,  to  them  in  this  suit 
what  they  would  be  entitled  to  recover  if  a  policy  were  issued 
and  that  which  was  agreed  to  be  done  were  actually  done: — 

Thereupon  it  is  ordered,  adjudged,  and  decreed  that  the 
said  agreement  so  entered  into  between  the  said  plaintiffs 
and  the  said  defendants  set  forth  in  the  bill  of  complaint, 
and  proven  in  this  cause,  be  specifically  performed. 

It  is  further  ordered,  adjudged,  and  decreed,  that  the  plain- 
tiffs recover  of  the  said  defendants  the  sum  of  eight  thousand 
seven  hundred  and  two  dollars  and  forty-three  cents,  as  and 
for  their  damage  in  this  behalf  sustained,  a  deduction  having 


NOTICES,    MOTIONS,   ORDERS,    DECREES,    ETC.  225 

been  first  made  from  the  sum  agreed  to  be  issued  for  pre- 
mium and  salvage,  and  also  the  sum  of  two  hundred  and 
four  dollars  and  twenty-four  cents,  for  their  cost  in  this  be- 
half sustained 


No.  273. 

Entry  Reversing  Decree. 

\^Captwni\ 

The  defendant  C.  D.,  heretofore  appealed  to  the  supreme 
court  of  the   United  States  from  certain  parts  of  the  final 

decree  made  by  this  court  in  this  cause  on  the day  of 

,  and  the  supreme  court  of  the  United  States  having  at 

the  October  term  1894,  duly  heard  the  said  appeal  upon 
the  transcript  of  the  record,  and  having  thereupon  ordered, 
adjudged,  and  decreed  that  so  much  of  the  said  decree  of 

this  court  as  allows  the  said  plaintiff  costs  and  the  sum  of 

dollars  for  interest  on  the  damages  found  for  him,  was  errone- 
ous and  should  be  reversed  and  annulled,  and  that  the  residue 
of  the  said  decree  of  this  court  should  be  affirmed ;  and  the  said 
supreme  court  having  remanded  this  cause  to  this  court  with 
instructions  that  such  proceedings  be  had  in  said  cause  as, 
according  to  right  and  justice  and  the  laws  of  the  United 
States,  ought  to  be  had,  the  said  appeal  notwithstanding, 
which  said  decree,  order,  and  instructions  appear  to  this  court 
by  the  mandate  of  the  said  supreme  court : 

Now,  therefore,  on  filing  the  said  mandate  ordered  [here 
set  forth  what  is  required  by  the  mandate\. 


No.  274. 
Decretal  Order  Appointing  Special  Master. 

\Caption?[ 

This  cause  came  on    to  be  heard  this day  of , 

upon  the  pleadings  and  proofs,  and  was  argued  by  counsel 
for  the  respective  parties,  and  the  court  having  considered 
the  same,  and  being  of  the  opinion  \here  set  forth  the  facts 
found  by  the  court\. 


226  IN   EQUITY. 

And  it  is  further  ordered,  adjudged,  and  decreed  that  the 
cause  be  referred  to  C.  G.,  Esq.,  as  special  master,  to  ascer- 
tain and  report  \here  set  forth  the  matters  concerning  which 
the  master  is  desired  to  repori\. 

And  upon  the  coming  in  and  confirmation  of  the  said 
report  that  said  plaintiff  have  a  decree  and  execution  for 
the  amount  found  due  him  and  also  for  the  costs  in  this 
suit  to  be  taxed. 


No.  275. 

Oath  of  Special  Master. 
\Caption^ 

I,  C.  G.,  having  heretofore  been  appointed  Special  Master 

in  the  above-entitled  cause,  do  solemnly  swear  that  I  will 

faithfully  and  impartially  perform  my  duties  as  such  master, 

agreeable  to  the  order  of  the  court,  to  the  best  of  my  ability 

and  understanding.     So  help  me  God.  C.  G. 

Sworn  to  before  me  and  signed  in  my  presence  this 

day  of ,1894.  B.  R., 

Clerk  of  Circuit  Court  of  the  United  States 

[►S<?«/.]  for  the district  of . 


No.  276. 

General  Notice  for  Proceedings  Before  Master. 

To  X.  Y., 

Counsel  for  Plaintifif  [<?r,  Defendant]. 

\Caption^ 

By  virtue  of  an  order  of  reference  in  the  above-stated  case 
I  do  appoint  to  consider  the  matters  thereby  to  me  referred 

Saturday,  the  day  of ,  at  10  o'clock  a.  m.,  at  my 

office  in  the  building, ,  at  which  time  and  place 

all  parties  concerned  are  to  attend. 

Dated, day  of ,  1894.  C.  G., 

Special  Master. 


NOTICES,   MOTIONS,   ORDERS,    DECREES,   ETC.  227 

No.  277. 

Interrogatories  for  Examination  of  Witnesses  Before 

a  Master. 

[Caption.'] 

Interrogatories  to  be  exhibited  on  the  part  of  the  said 
plaintiff  for  the  examination  of  witnesses  to  be  produced, 
sworn,  and  examined  before  C.  G.,  one  of  the  masters  of  said 
district  \or^  circuit]  court,  pursuant  to  a  decretal  order  made 
and  entered  in  this  cause  on  the day  of ,  1894. 

First  Int.  State  if  you  know  the  parties,  plaintiff  and  de- 
fendant, m  the  above-entitled  cause,  or  either  (or  any),  and 
which  of  them,  and  how  long  have  you  known  them  re- 
spectively, or  such  of  them  as  you  do  know;  declare  the 
truth  and  your  utmost  knowledge,  remembrance,  and  belief 
herein.  • 

[Continue  with  other  interrogatories.,  and  for  the  last  one 
sayf\ 

Int.     Do  you  know,  or  can  you  set  forth,  any  other 

matter,  or  thing,  which  may  be  a  benefit  or  advantage  to  the 
parties  at  issue  in  this  cause,  or  either  of  them;  or  that  may 
be  material  to  the  subject  of  this  your  examination,  or  the 
matters  in  question  in  this  cause?  If  so,  please  state  the 
same  fully  and  at  large  in  your  answer. 


No.  278. 

Master's  Report  (i). 

[Caption?^ 
To  the  Honorable  Judges,  etc. : 

In  pursuance  of  a  decretal  order  made  and  entered  in  this 

cause,  and  bearing  date  of  the  day  of ,  1894,  at  a 

stated  term  of  this  court,  held  at  [place  of  holding  court].,  in 

the  city  of ,  in  the  said  district,  by  which  it  was  referred 

to  C.  G  ,  of ,  one  of  the  masters  of  this  court,  to  take 

and  state  an  account  of  [according  to  the  decretal  order], 

I,  C.  G.,  a  master  in  said  court,  do  respectfully  report  that 
I  have  proceeded  to  investigate  the  matters  so  referred  to 


228  IN   EQUITY. 

me,  and  that  pursuant  to  a  summons  duly  issued,  I  have 
been  attended  by  the  parties,  plaintiff  and  defendant,  and 
their  respective  counsel  in  the  above  cause  [or  as  the  fact 
may  be\  and  that,  after  taking  due  proofs,  I  find  and  report 
that  \here  set  forth  the  findings  of  the  master]. 

I  do,  therefore,  respectfully  report  that  the  said  defendant 

should  be  decreed  to  pay  the  said  plaintiff  the  sum  of 

dollars,  besides  costs  to  be  taxed. 

I  respectfully  refer  to  schedules  A,  B,  C,  hereto  annexed, 
as  making  a  part  of  my  report. 

All  of  which  is  respectfully  submitted. 

Dated .  C.  G., 


Master. 


(i)  See  Rule  76  in  Equity. 


No.  279. 
Notice  Accompanying  Draft  of  Master's  Report. 

[Caption.] 
Messrs.  X.  &  X., 

Solicitors  for  Plaintiff, 
and 
Messrs.  Y.  &  Y., 

Solicitors  for  Defendant. 

Sirs:  You  are  hereby  notified  that  I  have  prepared  the 
draft  of  my  report  upon  the  matters  referred  to  me  as  mas- 
ter, by  the  interlocutory  decree  herein,  dated  the day  of 

,  and  that  a  copy  of  such  draft  report  accompanies  and 

is  annexed  to  this  notice,  and  is  herewith  served  upon  you  ; 
you  are  also  hereby  notified  that  I  shall  sign  and  file  said 
draft  report  as  my  report  herein,  unless  alterations  are  made 
by  me  therein,  upon  suggestions  of  counsel  for  either  party 

hereto,  and  that  I  appoint  the day  of ,  at  my  office. 

No. street,  in  the  city  of ,  at  1 1  o'clock  in  the 

forenoon  of  said  day,  for  counsel  for  either  party  hereto  to 


NOTICES,    MOTIONS,    ORDERS,    DECREES,   ETC.  229 

present  to  me  any  suggestions  of  amendments  to  or  altera- 
tions of  said  draft  report,  and  to  file  with  me  written  objec- 
tions or  exceptions  thereto,  if  any  they  have  to  the  same. 
Yours,  etc.,  C.  G., 

Master. 
Dated  at . 


No.  280. 

Exceptions  to  Master's  Report. 

Exceptions  taken  by  the  plaintiff  [or,  defendant]  to  the 
report  made  herein  by  C.  G.,  one  of  the  masters  of  this  court, 
to  whom  this  cause  was  referred  by  an  order  of  this  court 
made  and  entered  on  the day  of ,  1894. 

First  Exception :  For  that  the  said  master,  in  his  said 
report,  etc.  [staie  the  objection],  whereas  the  said  master 
should  have,  etc.  [state  what  it  is  claimed  ought  to  have  been 
reported\ 

Second  Exception  :     For  that,  etc.  R.  X., 

Solicitors  for,  etc. 


No.  281. 

Final  Decree  on  Master's  Report. 

[Caption^ 

This  cause  having  come  on  to  be  heard  upon  the  report  of 
C.  G.,  Esq.,  one  of  the  masters  of  this  court,  to  whom  it  was 
referred  to  ascertain  and   report  [as  in  the  decretal  order'], 

which  report  bears  the  date  of  the day  of ,  1894, 

[and  also  upon  exceptions  taken  to  the  said  report  on  the 
part  of  said  plaintiff,  and  also  on  the  part  of  said  defendant, 
and  upon  the  equity  reserved],  and  the  said  cause  having 
been  argued  by  counsel,  and  due  deliberation  had  thereon — 

It  is  ordered,  adjudged,  and  decreed,  and  this  court,  by  vir- 
tue of  the  power  and  authority  therein  vested,  does  order, 
adjudge,  and  decree  that  [the  decision  of  the  court]. 


230  '  IN   EQUITY. 

And  it  is  further  ordered,  adjudged,  and  decreed,  and  this 
court,  by  virtue  of  the  power  and  authority  therein  vested, 
does  order,  adjudge,  and  decree  that  the  said  defendant  pay 
to  the  said  plaintiff  the  sum  of dollars. 

And  it  is  further  ordered,  adjudged,  and  decreed  that  the 
said  defendant  pay  to  the  said  plaintiff  his  costs  in  this  suit 
to  be  taxed,  and  that  the  said  plaintiff  have  execution  for 
such  costs,  and  for  the  sum  above  decreed  to  be  paid  to  said 
plaintiff  as  aforesaid. 


No.  282. 

Reference  to  a  Master  in  Special  Cases. 

For  master's  reports  in  particular  cases  see  under  titles 
"Patents  "  and  "  Proceedings  relating  to  Receivers,"  etc. 


No.  283. 

Contempt  Proceedings. 
See  under  title  "Patents." 


No.  284. 

Motion  to  Retax  Costs. 

[Caption^ 

Now  comes  the  defendant  herein,  and  moves  the  court  to 
retax  the  costs  in  the  above-named  cause  by  adding  to  the 
same  already  taxed  the  following  items  to-wit : 

$20.00  as  docket  fee. 

$20.90  as  notary  fees  for  taking  depositions  of  S.  M.,  G.  H.,  and  1,.  F. 
$15.00  as  notary  fees  for  taking  depositions  of  F.  L.,  B.  R.,  and  E.  H. 
$15.00  as  attorney's  fees  on  the  depositions  of  the  six  witnesses  above 
named. 

Y.  &  Y., 
Solicitors  for  Defendant. 
[An  affidavit  showing  that  the  notary  fees  had  been  actually 
paid  should  be  filed  with  this  motion.l 


NOTICES,   MOTIONS,   ORDERS,    DECREES,    ETC.  23 1 

No.  285. 

Cost  Bill. 
See  form  No.  29. 


No.  286. 

Final  Record  in  Equity. 

The  plaintiff  in  the  above-entitled  cause  filed  his  bill  of 
complaint,  which  is  hereunto  annexed,  on day  of , 


and  the  writ  of  subpoena  was  thereupon  issued  and  returned 
personally  served. 

An  appearance  was  duly  entered  for  the  defendant  by  R. 

Y.,  his  solicitor,  and  on  the  first  Monday  of thereafter, 

an  answer  to  said  bill  of  complaint  was  filed,  the  same  being 
hereunto  annexed. 

On  the  first  Monday  of thereafter,  the  plaintifi"  filed 

a  replication,  the  same  being  hereto  annexed. 

On  the day  of ,  an  order  of  the  court  granting  to 

the  plaintiff  a  preliminary  injunction  as  prayed  for  in  the 
bill  of  complaint  was  filed  and  entered,  which  said  order  is 
hereunto  annexed. 

Testimony  was  thereafter  taken  by  the  respective  parties 
and  filed  in  the  clerk's  office  of  the  said  circuit  court. 

Afterwards,  and  at  the term  of of  said  court,  pres- 
ent the  Honorable  G.  W.,  district  judge,  the  said  cause  came 
on  to  be  heard  on  the  pleadings  and  proofs,  and  was  argued  by 

counsel.      On  the day  of ,  a  decree  of  said  court 

was  filed  and  entered  in  favor  of  the  plaintiff,  by  which 
it  was  adjudged  that  a  perpetual  injunction  should  issue 
against  the  defendant,  and  that  an  accounting  be  had  before 
C.  G.,  master  of  said  court ;  the  said  order  being  hereunto 
annexed. 

On  the day  of ,  the  said  master  filed  his  report, 

upon  which,  and  on  the  day  of ,  the  said  court 

caused  its  final  decree  to  be  entered  herein,  the  same  being 
hereunto  annexed. 


232  IN    EQUITY. 

And    the  costs  having   been  taxed  by  the  clerk  at  

dollars,  the  process,  pleadings,   and  decrees,  together  with 
other  papers  filed  in  said  cause,  are  duly  annexed  hereunto. 

Wherefore  let  the  said  A.  B.  recover  of  said  C.  D.  the  sum 

of dollars,  as  adjudged  in  said  final  decree,  together  with 

the  further  sum  of dollars,  the  cost  and  charges  as  taxed, 

making  in  the  aggregate  the  sum  of dollars. 

Signed  and  enrolled  this day  of .  B.  R., 

Clerk  of  the  Circuit  Court  of  the  United  States 
for  the district  of . 


RECEIVERS. 


No.  287. 

A  Bill  by  Creditor  Praying  the  Appointment  of  a 
Receiver  (i). 

Circuit  Court  of  the  United  States 

for  the district  of . 

A.  B.,  Plaintiff,  ^ 

vs.  y  In  Equity. 

C.  &  D.  Railway  Co.,  Defendant,  j 
To  the  Judges  of  the  Circuit  Court  of  the  United  States  for 

the district  of . 

A.  B.,  of ,  and  a  citizen  of  the  state  of ,  brings  this 

his  bill  on  his  own  behalf  and  that  of  all  other  creditors  and 
stock-holders  of  the  C.  &  D.  Railway  Co.,  who  may  choose  to 
become  parties  to  this  suit  and  contribute  to  the  expenses 
thereof,  against  the  said  C.  &  D.  Railway  Co.,  which  is  a  cor- 
poration organized  and  existing  under  the  laws  of  the  state  of 
,  and  being  a  citizen  of  the  state  of ,  and  an  inhab- 
itant of  the district  of . 

And  your  orator  shows  unto  your  honors  that  the  defend- 
ant was  duly  incorporated  and  organized  under  the  laws  of 
the  state  of on  the day  of ,  as  a  common  car- 
rier company,  with  authority  to  lease,  hold,  and  operate  any 
line  of  railway  and  its  appendages  within  or  without  said 

state  of ;  that  the  capital  stock  of  said  company  was  three 

million  dollars,  divided  into  thirty  thousand  shares  of  one 
hundred  dollars  each,  which  stock  was  immediately  all  sub- 
scribed and  paid  up,  and  on  the day  of said  defend- 

*See  Beach's  Modem  Eq.  Prac,  Chapter  22. 

233 


234  RECEIVERS. 

ant  company  duly  leased  from  the  Northern  Railway  Co.,  by 
a  written  instrument  bearing  the  date  last  mentioned,  the 
line  of  railway  known  as  the  Northern  Railway,  which  had 
been  constructed  and  was  owned  by  the  said  Northern  Rail- 
way Co.,  a  corporation  organized  and  existing  under  the  laws 

of  the  state  of ,  said  Northern  Railway  extending  from 

the  city  of through  the  state  of ,  to  the  city  of 

in  the  state  of ;  together  with  all   the   appurtenances 

thereto  belonging  as  specifically  set  forth  in  said  lease,  and 
said  company  at  once  took  possession  of  said  railway  and  has 
ever  since  been  and  still  is  engaged  in  operating  the  same  as 
a  common  carrier  of  goods  and  passengers  under  said  lease. 

The  entire  capital  of  said  company  was  shortly  after  its 
organization  invested  in  rolling  stock,  betterments,  and  com- 
pletion of  said  railway,  which  said  company  was  required  to 
make  by  the  terms  of  said  lease.  Upon  all  the  property  rep- 
resented by  such  investment  of  said  capital,  or  otherwise 
acquired  by  said  company,  a  lien  was  reserved  by  said  lease 
prior  and  preferably  to  any  and  all  other  liens  whatsoever,  to 
secure  the  payment  of  the  rents,  taxes,  and  assessments 
reserved  therein  to  be  paid  by  said  company,  and  to  secure 
the  faithful  performance  of  the  covenants  of  said  lease  by  it. 
One  of  said  covenants  was  that  said  company  would  provide 
and  keep  the  said  line  of  railway  supplied  with  rolling  stock 
and  equipment  so  that  the  business  of  the  same  should  be 
preserved,  encouraged,  and  developed,  and  at  all  times  be 
done  with  safety  and  expedition  and  the  public  accommodated 
in  respect  thereto  with  all  practicable  conveniences  and  facil- 
ities, and  that  the  future  growth  of  such  business,  as  the  same 
might  arise  or  be  reasonably  anticipated,  should  be  fully  pro- 
vided for  and  secured. 

The  rental  reserved  in  said  lease  was  $800,000  per  annum 
during  the  first  five  years  of  the  term  thereof;  $900,000  per 
year  during  the  second  five  years;  $1,000,000  per  year  during 
the  third  five  years;  $1,090,000  per  year  during  the  fourth 
period  of  five  years,  and  $1,250,000  per  year  during  the  last 


ORIGINAL     PROCEEDINGS.  235 

period  of  five  years,  of  the  term  of  said  lease,  and  an  addition- 
al $12,000  each  year  payable  to  the  trustees  of  said  railway. 
The  present  amount  of  rental  which  said  company  is  required 
to  pay  under  said  lease  is  $1,000,000  per  year,  payable  quar- 
terly, on  the  1 2th  day  of  January,  April,  July,  and  October 
in  each  year.  The  rolling  stock  of  said  company  is  insuffi- 
cient, and  what  it  has  is  greatly  in  need  of  renewal  in  order 
to  enable  said  company  to  maintain  said  railway  as  provided 
in  said  lease,  which  would  require  a  large  sum  of  money  to 
be  expended  each  year  in  addition  to  said  rent  and  to  the 
ordinary  maintenance  of  said  property. 

The  earnings  of  said  company  have  for  some  time  past 
been  and  still  are  barely  sufficient  to  pay  said  rental,  leaving 
nothing  for  the  other  necessary  expenditures  aforesaid  nor  to 
meet  other  obligations,  and  for  the  past  seven  months  there 
has  been  a  deficiency  of  $123,000  in  such  earnings  in  meeting 
the  rent  and  other  obligations  of  said  lease.  Said  company 
has  no  property  but  said  leasehold  and  the  rolling  stock  and 
other  investments  aforesaid,  with  the  exception  of  a  small 
amount  of  real  estate,  whose  value  your  orator  can  not  state, 
but  which  value  is  inconsiderable,  and  which  real  estate, 
being  used  for  terminal  and  other  railroad  purposes,  can  not 
be  sold.  Said  company  has  no  property  which  can  be 
pledged  or  mortgaged  to  raise  money,  and  has  no  credit  to 
borrow  money  without  security. 

A  large  number  of  actions,  in  which  large  sums  of  money 
are  claimed,  are  pending  against  said  company  in  the  courts 

of  the  state  of ,  state  of ,  and  state  of ,  and  in 

the  federal  courts  therein,  and  the  superior  court  of ,  in 

an  action  which  has  been  pending  since  shortly  after  the 
organization  of  said  company,  and  has  greatly  embarrassed  it 
in  the  prosecution  of  its  business,  has  just  rendered  judgments 
against  said  company  in  favor  of  various  persons,  firms,  and  cor- 
porations, amounting  in  the  aggregate  to  over  $300,000  exclu- 
sive of  costs,  which  judgments  are  based  on  a  fraudulent  issue 
of  spurious  stock  certificates  by  its  former  secretary  shortly 


236  RECEIVERS. 

after  its  organization.     Said  company  has  been  advised  by  its 

counsel  to  prosecute  proceedings  in  the  supreme  court  of 

for  the  reversal  of  such  judgments,  and  said  company  desires 
and  proposes  so  to  do.  In  order  to  stay  execution  during 
such  proceedings  in  error,  a  bond  is  required  of  said  com- 
pany in  double  the  amount  of  said  judgments,  conditioned 
to  pay  the  same  in  case  they  shall  be  affirmed.  Said  com- 
pany has  made  every  effort  in  its  power,  through  its  stock- 
holders and  otherwise,  to  procure  such  bond,  but  is  wholly 
unable  to  do  so.  It  has  sought  to  induce  said  judgment 
creditors  to  accept  a  first  'mortgage,  subject  to  the  lien  re- 
served by  said  lease,  on  all  its  property  of  every  description 
wherever  situated,  but  said  creditors  refuse  to  accept  such 
mortgage,  and  threaten  and  will,  unless  prevented  by  the 
granting  of  the  relief  hereinafter  prayed,  issue  and  levy  ex- 
ecutions upon  the  property  of  this  company  situated  in  the 

state  of ,  and  commence  proceedings  to  subject  to  the 

payment  of  their  said  judgments  its  property  situated  in 
^  other  states,  thereby  preventing  said  company  from  carrying 
on  its  business,  disabling  it  from  paying  said  rental  and  com- 
plying with  the  obligations  of  said  lease,  and  causing  the 
loss  and  forfeiture  of  said  leasehold  estate  which  is  provided 
by  the  terms  thereof  in  case  of  the  failure  of  said  lessee  to 
comply  with  its  obligations  thereunder,  and  causing  the  en- 
tire loss  to  the  stockholders  and  creditors  of  said  company 
of  its  rights,  franchises,  and  property. 

Your  orator  is  a  stockholder  in  said  company  and  a  cred- 
itor thereof,  being  the  owner  of  a  certain  judgment  rendered 

against  it  in  the  supreme  court  of  the  state  of for  the 

sum  of  seven  thousand  six  hundred  and  thirteen  dollars  and 
twenty  cents,  with  interest  and  costs,  which  judgment  is  and 
remains  wholly  due  and  unpaid,  and  the  said  company  has 
no  property  subject  to  levy  and  sale  upon  execution  to  pay 
the  same.  Said  company  has  judgments  against  it  in  all  the 
said  states  on  which  it  is  liable  to  execution,  and  has  a  large 
floating  debt,  amounting   to  between   200,000   and  300,000 


ORIGINAL   PROCEEDINGS.  2$1 

dollars  net,  which  it  has  not  sufficient  resources  or  credit  to 
meet,  and  said  company  is  insolvent.  Your  orator  is,  further- 
more, chairman  of  the  board  of  directors  of  said  company, 
and  is  charged  with  the  duty  of  protecting  and  preserving 
said  property  for  the  equal  benefit  of  its  creditors  and,  after 
their  payment,  for  the  benefit  of  the  stockholders  thereof,  and 
he  avers  that  there  is  no  adequate  remedy  at  law  for  the  pre- 
vention of  the  wrongs  and  injuries  threatened  as  aforesaid, 
and  for  the  preservation  and  protection  of  his  rights  above 
set  forth,  and  that  there  can  be  no  relief  therefor  only  in 
equity. 

Wherefore  your  orator,  on  behalf  of  himself  and  of  all 
others  in  like  relation  to  the  said  company  and  its  property, 
prays  the  premises  considered: 

I^irsi.  That  a  writ  of  subpcena  issue  against  the  defendant, 
the  C.  &  D.  Railway  Co.,  requiring  it  to  appear  in  this  court 
and  answer  this  bill  of  complaint,  but  without  oath,  all  an- 
swers under  oath  being  hereby  expressly  waived,  and  to 
stand  and  abide  such  orders  £ind  decrees  as  the  court  may 
from  time  to  time  adjudge  and  enter  in  the  premises. 

Second.  That  the  court  will  fully  administer  as  a  trust  fund 
all  and  singular  the  property,  rights,  and  franchises  belonging 
to  said  company,  including  said  line  of  railway  with  all  and 
singular  its  appurtenances  so  held  by  lease  as  aforesaid,  and 
will  marshal  all  assets  and  ascertain  the  several  respective 
liens  and  priorities  existing  thereon,  and  enforce  and  decree 
the  rights,  liens,  and  equities  of  each  and  all  the  stockholders 
and  creditors  thereof  as  the  same  may  be  finally  ascertained 
and  decreed  by  the  court  upon  the  respective  interventions 
or  applications  of  each  and  every  creditor  or  stockholder. 

Third.  That  for  the  purpose  of  enforcing  the  rights  and 
equities  of  the  creditors  of  said  company,  as  well  as  of  pro- 
tecting the  rights,  interests,  and  property  of  said  company, 
and  to  secure  as  far  as  possible  the  performance  of  the  duties 
which  said  company  owes  to  the  public  as  a  common  carrier, 
as  well  as  to  preserve  the  unity  of  the  business  and  property 


238  RECEIVERS. 

of  said  railway  company  as  the  same  has  been  maintained 
and  operated  since  the  year  of  18 — ,  and  of  preventing  dis- 
ruption thereof  by  separate  executions,  attachments,  or  se- 
questrations, and  of  preventing  the  loss  a;nd  forfeiture  of  its 
leasehold  and  other  property  by  reason  of  its  failure  to  pay 
the  rental  reserved  thereon  as  aforesaid,  this  court  forthwith 
appoint  a  receiver  of  all  and  singular  the  property,  rights, 
assets,  and  franchises  of  every  nature  and  wherever  situated, 
held,  owned,  or  controlled  by  said  company,  together  with 
all  leasehold  rights  and  contracts,  with  full  authority  to  man- 
age and  operate  the  same  under  the  direction  of  the  court ; 
and  that  all  of  the  oificers,  managers,  superintendents,  agents, 
and  employees  of  the  said  company  be  required  forthwith  to 
deliver  up  to  such  receiver  the  possession  of  all  and  singular 
each  and  every  part  of  the  said  property  wherever  situated ; 
and  also  all  books  of  accounts,  vouchers,  and  papers  in  any 
way  relating  to  its  business  or  the  operation .  of  its  said  rail- 
way; and  for  an  injunction  restraining  each  and  every  of  the 
officers,  directors,  managers,  superintendents,  agents,  and  em- 
ployees of  the  said  company  from  in  any  way  interfering  with 
the  possession  and  control  of  such  receiver  over  said  property. 

Fourth.  That  at  such  time  as  may  be  found  just  and  proper, 
the  property  of  said  company  may  be  ordered  to  be  sold  and 
the  proceeds  distributed  among  those  entitled  thereto,  and 
that  your  orator  may  have  such  other  and  further  relief  as  to 
the  court  may  seem  proper  and  as  may  be  necessary  to  fully 
protect  and  enforce  the  rights  and  equities  of  your  orator  and 
of  all  other  creditors  and  stockholders  of  said  company. 

A.  B. 

X.  &  X., 

Solicitors  for  Plaintiff. 

[^Verification^  see  No.  85.] 

(i)  See  Beach's  Modern  Eq.  Pleadings,  Sec.  729,  and  Notes. 


ORIGINAL    PROCEEDINGS.  239 

No.  288. 

Bill  for  the  Foreclosure  of  a  Railway   and  Appointment 

of  Receiver. 

For  form  of  Bill  in  Equity,  together  with  the  full  proceed- 
ings relating  to  the  appointment  of  receivers,  etc.,  in  con- 
nection with  the  foreclosure  of  a  railway,  see  Beach's  Modern 
Equity  Practice,  p.  1 103  ^Z  seq. 


No.  289. 

Bill  for  an  Account  of  Partnership  Dealings  and  Dissolu- 
tion, and  for  a  Receiver. 

For  form  of  bill,  see  No.  89. 


No.  290. 

Affidavit  of  Insolvency  in  Support  of  Bill  (i). 

State  of , 

County  of ,  ss. 

G.  L.,  of  lawful  age,  being  duly  sworn,  on  oath  says,  that 
he  resides  in  the  city  of ,  state  of ,  and  is  the  Treas- 
urer of  the  C.  D.  Co.,  a  New  Jersey  corporation,  defendant  in 
the  foregoing  bill  of  complaint;  that  he  has  heard  the  fore- 
going bill  of  complaint  read,  and  is  familiar  with  the  facts 
therein  stated.  That  all  said  facts  with  reference  to  the  for- 
mation of  said  corporation,  its  purposes,  the  amount  of  its 
stock,  and  its  business  and  property,  are  true   to  his  own 

knowledge.     That  a  debt  of dollars  due  on  call  by  said 

corporation  to  the  National  Bank  of  the  city  of  

was  demanded  on  call,    and  became  due  and  payable  on  the 

day  of  ,  1893,  and  payment  thereof  was  refused 

and  default  made  therein,  because  of  lack  of  sufficient  funds 
of  said  corporation  to  pay  the  same.  Further  debts  of  said 
corporation  matured  on  the day  of ,  1893,  amount- 


240  RECEIVERS. 

ing  to  not  less  than dollars,  and  default  was  made  in 

the  payment  thereof,  because  of  lack  of  funds  to  pay  the 

same.     On  the day  of ,  1893,  further  debts  of  said 

corporation  matured,  amounting  to  not  less  than dollars, 

and  default  was  made  in  the  payment  thereof  for  lack  of 

funds.    Daily  thereafter  during  the  month  of debts  will 

mature. 

The  total  amount  of  which  said  indebtedness  maturing 

from  the day  of to  the  day  of ,  1893,  is 

more  than dollars.    The  corporation  is  also  indebted  in 

amounts  which  will  mature  from    day  to  day    during   the 

months  of  , ,  and  ,  in    1893,  exceeding  

dollars. 

The  corporation  is  without  funds  to  meet  the  said  indebt- 
edness, or  any  considerable  part  thereof,  and  has  no  assets 
which  are  readily  convertible  into  money,  and  has  no  rea- 
sonable prospect  of  being  able  to  meet  its  obligations  after 
this  date.  The  assets  of  said  corporation  consist  of  several 
[cordage]  mills,  owned  or  operated  at  least  in  the  several 
cities  mentioned  in  the  bill  of  complaint,  and  all  the  [cord- 
age and  tTJuine]  manufactured,  and  in  manufacture,  and  in 
process  of  manufacture,  the  value  of  all  which  it  is  impos- 
sible at  this  time  to  estimate,  or  to  even  approximate. 

That  the  corporation  also  has  certain  assets,  consisting  of 
open   accounts  receivable    and  bills  receivable,  the  greater 

part  of  which  mature  in  , ,  and ,  1893,  and  a 

very  small  part  of  which  is  available  for  the  raising  of  money 
at  this  time.  The  securities  of  said  company  which  are 
available  for  the  raising  of  said  money  are  already  pledged 
and  hypothecated  for  debts  due  by  the  corporation.  The 
corporation  can  not  pay  its  maturing  obligations,  and  has  no 
means  of  raising  money  to  pay  the  same,  and  is  in  fact  un- 
able to  pay  its  debts,  and  is  insolvent.  G.  L. 

Subscribed  and  sworn  to  before  me  this day  of , 

1893.  J.  N., 

[►S?^/.]  [Official  title.^ 

(i)  See  Beach's  Modem  Eq.  Prac,  Sec.  729. 


ORIGINAL   PROCEEDINGS.  24I 

No.  291. 

Entry  of  Appearance   and  Answer, 

[Caption^ 

And  now  comes  the  C.  D.  Co.,  defendant  in  the  above-enti- 
tled cause,  and  waives  the  issuing  and  service  of  subpoena, 
and  enters  its  appearance  herein,  and  admits  that  the  several 
statements  and  charges  of  said  bill  of  complaint  are  true. 

Y.  &  Y., 
Attorneys  for  the  C.  D.  Co. 


No.  292. 

Order  Appointing  Receiver  for  a  Railway, 

\_Caption.'\ 

Upon  reading  and  considering  the  verified  bill  in  this 
cause,  together  with  the  evidence  adduced,  on  motion  of 
counsel  for  the  plaintiff,  the  defendant  having  been  duly  no- 
tified to  appear  by  its  counsel,  it  is  ordered  by  the  court  that 
S.  M.  be  and  is  hereby  appointed  receiver  of  this  court  of  all 
and  singular  the  property,  assets,  rights,  and  franchises  of  the 
C.  &  D.  Railway  Company  described  in  the  bill  of  complaint 
herein,  wherever  situated,  including  all  the  railroad  tracks, 
terminal  facilities,  real  estate,  warehouses,  offices,  stations, 
and  all  other  buildings  and  property  of  every  kind  owned, 
held,  possessed,  or  controlled  by  said  company,  together  with 
all  other  property  in  connection  therewith,  and  all  moneys, 
choses  in  action,  credits,  bonds,  stocks,  leasehold  interests, 
operating  contracts,  and  other  assets  of  every  kind,  and  all 
other  property,  real,  personal,  and  mixed,  held  or  possessed 
by  it,  to  have  and  to  hold  the  same  as  the  officer  of  and  under 
the  orders  and  directions  of  the  court. 

The  said  receiver  is  hereby  authorized  and  directed  to  take 
immediate  possession  of  all  and  singular  the  property  above 
described,  wherever  situated  or  found,  and  to  continue  the 
operation  of  the  railroad  of  said  company,  and  to  conduct 


242  RECEIVERS. 

systematically,  in  tlie  same  manner  as  at  present,  the  business 
and  occupation  of  carrying  passengers  and  freight,  and  the 
discharge  of  all  the  duties  obligatory  upon  said  company. 

And  said  C.  &  D.  Railway  Company,  and  each  and  every 
of  its  officers,  directors,  agents,  and  employes  are  hereby  re- 
quired and  commanded  forthwith  to  turn  over  and  deliver  to 
such  receiver  or  his  duly  constituted  representative  any  and 
all  books  of  accounts,  vouchers,  papers,  deeds,  leases,  con- 
tracts, bills,  notes,  accounts,  money,  or  other  property  in  his 
or  their  hands  or  under  his  or  their  control,  and  they  are 
hereby  commanded  and  required  to  obey  and  conform  to 
such  orders  as  may  be  given  them  from  time  to  time  by  the 
said  receiver  or  his  duly  constituted  representative  in  con- 
ducting the  said  railway  and  business,  and  in  discharging  his 
duty  as  such  receiver ;  and  they  and  each  of  them  are  hereby 
enjoined  from  interfering  in  any  way  whatever  with  the  pos- 
session or  management  of  any  part  of  the  business  or  prop- 
erty over  which  said  receiver  is  so  appointed,  or  from  in  any 
way  preventing  or  seeking  to  prevent  the  discharge  of  his 
duties  as  such  receiver.  Said  receiver  is  hereby  fully  author- 
ized to  continue  the  business  and  operate  the  railway  of  said 
company,  and  manage  all  its  property  at  his  discretion  in 
such  manner  as  will,  in  his  judgment,  produce  the  most  sat- 
isfactory results  consistent  with  the  discharge  of  the  public 
duties  imposed  on  said  company,  and  to  collect  and  receive 
all  income  therefrom  and  all  debts  due  said  company  of  every 
kind,  and  for  such  purpose  he  is  hereby  invested  with  full 
power  at  his  discretion  to  employ  and  discharge  and  fix  the 
compensation  of  all  such  officers,  counsel,  managers,  agents, 
and  employees  as  may  be  required  for  the  proper  discharge 
of  the  duties  of  his  trust. 

And  said  receiver  is  directed  to  deposit  the  moneys  coming 

into  his  hands  in  some  bank  or  banks  in  the  city  of , 

,  and  to  report  his  selection  to  the  court. 

Said  receiver  is  hereby  fully  authorized  and  empowered  to 
institute  and  prosecute  all  such  suits  as  may  be  necessary,  in 


ORIGINAL    PROCEEDINGS.  243 

his  judgment,  to  the  proper  protection  of  the  property  and 
trust  hereby  vested  in  him,  and  likewise  defend  all  actions 
instituted  against  him  as  receiver,  and  also  to  appear  in  and 
conduct  the  prosecution  or  defense  of  any  and  all  suits  or 
proceedings  now  pending  in  any  court  against  said  company, 
the  prosecution  or  defense  of  which  will,  in  the  judgment  of 
said  receiver,  be  necessary  and  proper  for  the  protection  of 
the  property  and  rights  placed  in  his  charge,  and  for  the  in- 
terest of  the  creditors  and  stockholders  of  said  company  (i). 

Said  receiver  is  hereby  required  to  give  bond  in  the  sum 
of  $100,000.00,  with  security  satisfactory  to  this  court,  for  the 
faithful  discharge  of  his  duties,  and  is  also  required  to  make 
and  file  full  reports  in  this  court  quarterly. 

And  the  court  reserves  the  right  by  orders  hereinafter  to 
be  made,  to  direct  and  control  the  payment  of  all  supplies, 
materials,  and  other  claims,  and  to  in  all  respects  regulate 
and  control  the  conduct  of  said  receiver.  J-  S., 

Circuit  Judge. 

And  thereupon  came  in  open  court  said  S.  M.,  and  accepted 
such  appointment,  and  was  thereupon  duly  sworn  according 
to  law,  and  tendered  his  bond  as  required  by  said  order,  with 
W.  P.  and  C.  J.  as  sureties  therein,  which  bond  is  hereby 
approved  and  accepted  (2). 

(i)  As  to  the  rights  of  a  receiver  to  sue,  see  Beach's  Modern  Eq. 
Prac,  Sees.  742  and  743. 
(2)  See  note  at  the  end  of  No.  293. 


No.   293. 

Order  Appointing  Receiver  for  a  Manufacturing 
Corporation. 

{Caption^ 

Upon  reading  and  filing  the  verified  bill  of  complaint  in 
this  cause,  together  with  the  verified  affidavits  of  J.  W.  and 
O.  L.  and  the  exhibits  in  support  thereof,  and  on  motion  of 
the  counsel  for  plaintiff,  and  counsel  for  defendant  appearing 


244  RECEIVERS. 

and  consenting  thereto,  it  is  ordered  by  the  court  that  E.  Y., 

of ,  in  the  state  of ,  and  C.  L.,  of ,  in  the  state 

of ,  be  and  they  are  hereby  appointed  receivers  of  this 

court  of  all  and  singular  the  property  of  the  N,  C.  Co.  of 
every  description,  and  all  money,  claims  in  actions,  credits, 
bonds,  stocks,  leasehold  interests  or  operating  contracts,  and 
other  assets  of  every  kind,  and  all  other  property,  real,  per- 
sonal, or  mixed,  held  or  possessed  by  said  company,  to  have 
and  to  hold  the  same  as  officers  of  and  under  the  orders  and 
directions  of  this  court. 

The  said  receivers  are  hereby  authorized  and  directed  to 
take  immediate  possession  of  all  and  singular  the  property 
above  'described,  and  to  continue  the  business  of  said  com- 
pany. 

Each  and  every  of  the  officers,  directors,  agents,  and  em- 
ployees of  said  N.  C.  Company  are  hereby  required  and  com- 
manded forthwith,  upon  demand  of  the  said  receivers,  to  turn 
over  and  deliver  to  such  receivers  any  books,  papers,  moneys, 
or  deeds,  or  property,  or  vouchers  for  the  property,  under  their 
control. 

The  said  N.  C.  Company  and  its  officers  are  hereby  directed 
immediately  to  execute  and  deliver  to  the  said  receivers  deeds 
of  all  real  estate  now  owned  or  possessed  by  said  company, 
and  transfers  and  assignments  of  all  their  property.  * 

Said  receivers  are  hereby  fully  authorized  to  institute  and 
prosecute  all  such  suits  as  they  may  deem  necessary,  and  to 
defend  all  such  actions  instituted  against  them  as  such  re- 
ceivers, and  also  to  appear  in  and  conduct  the  prosecution  or 
defense  of  any  suits  against  the  said  N.  C.  Company. 

The  said  receivers  are  hereby  authorized  and  directed  out 
of  the  moneys  coming  into  their  hands  to  pay  and  discharge 
all  amounts  due  to  employees  upon  the  current  pay-roll. 

Each  of  the  said  receivers  is  required  to  file  with  the  clerk 
of  the  court  within  ten  days  from  date  a  proper  bond,  the 
sureties  to  be  approved  by  the  clerk  of  this  court,  in  tlie  penal 
sum  of dollars. 


ORIGINAL    PROCEEDINGS. 


243 


All  creditors  of  said  N.  C.  Company  are  hereby  enjoined 
from  in  any  way  intermeddling  with  the  property  hereby  di- 
rected to  be  turned  over  to  said  receivers  ;  and  all  officers, 
directors,  and  agents  of  said  N.  C.  Company  are  hereby  en- 
joined from  interfering  with  or  disposing  of  said  property  of 
said  N.  C.  Company  in  any  way,  except  to  transfer,  convey, 
and  turn  over  the  same  to  said  receivers.  J,  S., 

Circuit  Judge. 

[^I/the  receivers  appear  in  open  court  at  the  time  the  order 
is  made^  an  entry  like  that  appearing  at  tJie  end  of  No.  292 
should  be  made.  When  the  receivers  appear  and  accept  the 
appointment  later ^  an  entry  should  be  made  stating  such  fact^ 


No.  294. 

Oath  of  Receiver. 
[Caption^ 

I,  the  undersigned,  S.  M.,  having  been  appointed  receiver 
of  the  C.  &  D.  Railway  Company,  do  solemnly  swear  that  I 
will  faithfully  perform  the  duties  of  that  office  and  obey  all 
the  orders  of  said  court.     So  help  me  God.  S.  M. 

Subscribed  and  sworn  to  before  me  this day  of . 

J.  S., 
Circuit  Judge. 


No.  295. 

Bond  of  Receivers. 
\Captioni] 

This  undertaking,  made  and  entered  into  the day  of 

witnesseth:    that  we,   S.   M.,   as  principal,   and  E.  F. 


and   G.  H.,  as  sureties,   do  promise  and   undertake,  to  and 
with  the  clerk  of  said  court,  for  the  benefit  of  whom  it  may 

concern  in  the  penal  sum  of dollars,  that  the  said  S.  M. 

will  faithfully  discharge   the   duties  of  receiver  of  the  C.  & 
D.  Railway  Company,  and  obey  all  orders  of  the  court  herein. 


246  •  RECEIVERS. 

Witness  our  hands  and  seals  this of ,  1894. 

S.  M.  [Seal.] 
E.  F.  [Seal^ 
G.  H.    [Seal.] 

State  of , 

,  County  of ,  ss. 

I,  E.  F.,   one  of  the  sureties  named  in  the  within  bond,  do 

swear  that  I  am  pecuniarily  worth  the  sum  of dollars 

over  and  above  all  my  debts  and  liabilities  and  legal  exemp- 
tions. E.  F. 

Sworn  to  before  me  this day  of ,  1894. 

[Seal.]     E.  G.,  Notary  Public. 


Approved  this day  of ,  1894. 


J.S., 

Circuit  Judge. 


No.  296. 

Order  that  Receivers  Give  Notice  to  Stockholders 
by  Publication. 

For  form,  see  No.  323.      The  necessary  alterations  can 
readily  be  made  for  pleading  in  the  original  suit. 


No.  297. 

Petition  for  Order  Limiting  Time  to  Present  Claims,  etc. 

For  form,  see  No.  324.      The   necessary  alterations  can 
readily  be  made  for  pleading  in  the  original  suit. 


No.  298. 

Petition  for  an  Order  upon  a  Defendant  to  Deliver  to  the 
Receivers  the  Deed  Records,  Plats,  and  Other  Muni- 
ments of  Title  (i). 

[Cap  lion.] 

The  receivers,  S.  M.  and  H.  C,  respectfully  show : 
First.     The  title  papers  to  the  real  property  in  their  pos- 
session consist  of  deeds  of  conveyances  for  right  of  way,  depot 


ORIGINAL    PROCEEDINGS.  247 

grounds,  and  other  parcels  and  tracts  of  land  used  by  the 
railway  company  in  the  operation  and  maintenance  of  said 
railway,  and  lands  purchased  or  donated  to  said  railway  or  its 
grantors  as  authorized  by  its  charter. 

Second.  That  said  C.  &  D.  Railway  Company,  and  the 
other  corporations  whose  property  is  now  in  the  possession 
of  these  receivers,  and  their  grantors  during  the  time  of  the 
construction  of  said  railways,  and  from  time  to  time  as  their 
requirements  rendered  necessary,  condemned  by  proceedings 
in  court  in  the  different  counties  along  the  lines  of  said  rail- 
ways, tracts  of  land  for  right  of  way,  depot  grounds,  and  for 
other  necessary  purposes,  and  for  their  convenience,  had  pre- 
pared and  on  file  in  their  offices  copies  of  all  such  condemna- 
tion proceedings. 

Third.  That  said  C.  &  D.  Railway  Company,  also  for  the 
convenience  and  use  of  its  officers  and  employees,  that  they 
might  readily  ascertain  the  exact  boundaries  of  the  different 
tracts  and  parcels  of  land,  so  conveyed  to  it  and  its  grantors, 
or  the  other  lines  of  railway  in  its  possession  and  operated  by 
it,  or  condemned  as  aforesaid,  caused  full  and  accurate  surveys 
of  the  same  to  be  made,  and  caused  plat  books  and  surveys 
made  thereof,  and  caused  indexes  to  be  prepared  thereof. 

Fourth.  That  said  papers,  records,  plats,  etc.,  show  in 
convenient  shape  all  the  property  along  the  lines  of  said  rail- 
way now  in  the  possession  of  these  receivers,  and  the  title 
thereof,  and  the  rights  of  all  of  said  railways  in  each  piece  of 
said  property,  and  how  acquired,  and  from  whom  and  under 
what  contracts  or  conditions,  if  any. 

Fifth.  That  said  papers,  plats,  etc.,  are  of  great  necessity 
in  the  operation  of  said  railway,  in  that  they  constitute  the 
muniments  of  title  to  all  of  said  property,  and  show  the  bound- 
ary and  extent  thereof  from  actual  surveys,  and  enable  your 
receivers  to  readily  ascertain  what  real  estate  is  covered  by 
the  orders  of  this  court,  of  what  they  are  entitled  to  take  pos- 
session, and  of  what  they  are  required  to  defend  the  posses- 
sion against  adverse  claimants  or  intruders,  and  of  what  they 


248  RECEIVERS. 

may  rightfully  occupy  and  use  in  the  operation  and  mainte- 
nance of  said  railway,  and  by  which  they  may  ascertain  any 
conditions  upon  which  any  tract  of  land  is  held,  and  deter- 
mine how,  or  in  what  -respect,  they  may  be  required  to  com- 
ply with  demands  on  them  for  performance  of  such  conditions. 

Sixth.  That  these  receivers  require  said  muniments  of 
title  and  surveys  in  many  respects  as  fully  and  as  necessarily 
as  the  C.  &  D.  Railway  Company  did  at  the  time  they  pro- 
cured the  same. 

Seventh.  That  all  of  said  plats,  surveys  and  books  and 
indexes  are  in  the  possession  of  the  defendant,  the  Missouri 
Pacific  Railway  Company,  and  they  have  neglected  and 
refused  to  deliver  the  same  to  these  receivers,  though 
requested  to  do  so. 

Wherefore,  these  receivers  pray  for  an  order  upon  said 
C.  &  D.  Railway  Company,  defendant  herein,  to  deliver  to 
them  all  of  said  deeds,  papers,  plats,  surveys,  and  books  and 
indexes.  Z.  &  Z., 

Solicitors  for  the  Receivers. 

(i)  The  order  asked  for  in  this  petition  is  usually  included  in  the 
order  appointing  receiver,  and  this  petition  is  only  needed  when  such 
is  omitted  from  the  order  appointing  the  receiver. 


No.  299. 

Order   Requiring  Defendant  to  Turn  Over  to   Receivers 
Books,  Plats,  and  Deeds  (i). 
\Caption^ 

ORDER. 

At  this  day  the  petition  of  the  receivers  for  an  order  di- 
recting the  defendant,  theC.  &  D.  Railway  Company,  to  deliver 
to  them  certain  deeds,  records,  plats,  surveys,  and  other  mun- 
iments of  title  to  the  real  property  in  their  possession  under 
the  order  of  this  court  having  been  presented  to  this  court, 
and  the  court  having  duly  considered  the  same,  it  is  ordered 
that  the  said  C.  &D.  Railway  Company  deliver  to  said  receivers 


ORIGINAL    PROCEEDINGS.  249 

all  deeds  of  conveyance,  records,  plats,  surveys,  and  books, 
and  all  other  papers  and  muniments  of  title  in  their  posses- 
sion or  under  their  control  pertaining  to  or  aflfecting  the  title 
or  right  to  the  possession  of  the  real  estate  in  the  possession 
of  the  receivers  under  the  orders  of  the  court,  or  show  cause 

on  the day  of ,  at  10  a.  m.,  before  me  at  the  United 

States  court  room  in  the  city  of .  J.  S., 

Dated .  Circuit  Judge. 

The  foregoing  order  made  absolute,  and  the  receivers  and 
C.  &  D.  Railway  Company  shall  make  schedule,  and  receivers 
shall  receipt  for  same.  J.  S., 

Dated .  Circuit  Judge. 

(i)  See  petition  No.  298  and  note  to  same. 


No.  300. 

Petition  by  Receiver  for  Authority  to  Settle  Traffic 
Balance. 
[Caption^ 

Petition  by  the  receivers  for  authority  to  adjust,  settle,  and 
pay  traffic  balances  between  the  C.  &  D.  and  other  rail- 
roads. 
S.  M.  and  H.  C,  receivers  of  the  C.  &  D.  Railway,  respect- 
fully show  : 

I.  By  the  decree  made  in  this  case  on  the day  of 

,  and  filed  herein  on  the day  of ,  being  the  de- 
cree appointing  your  petitioners  receivers,  among  others  the 
following  order  was  made  : 

''''Fifth.  The  matter  of  the  payment  of  balances  due  or  to 
become  due  to  other  railroads  or  transportation  companies 
growing  out  of  the  exchange  of  traffic  is  reserved  for  further 
orders." 

II.  Since  your  receivers  have  taken  possession  of  the  C. 
&  D.  Railway ,'there  have  arisen  traffic  balances  between  the 
C.&D.  Railway,  operated  by  your  receivers,  and  other  railways 


25©  RECEIVERS. 

and  transportation  companies.     These  traffic  balances  consist 
generally  of, — 

First.  Freight  balances,  which  are  amounts  found  to  be 
due  as  between  freight  delivered  to  connecting  lines  by  the 

C.  &  D.  Railway,  and  received  from  connecting  lines  by  said 
railway. 

Second.  Ticket  accounts.  These  result  from  the  sale  of 
coupon  tickets  by  the  C.  &  D.  Railway  over  foreign  lines, 
and  the  sale  by  foreign  lines  of  such  tickets  over  the  C.  & 

D.  Railway. 

Third.  Mileage  accounts.  These  accounts  comprise  the 
mileage  of  the  cars  of  other  railway  companies  over  the  line 
of  the  C.  &  D.  Railway,  and  the  mileage  of  its  cars  over 
other  railways. 

These  traffic  balances  are  sometimes  in  favor  of  one  road 
and  sometimes  in  favor  of  the  other.  It  is  vitally  necessary 
in  the  transaction  of  railway  business  that  these  traffic  bal- 
ances should  be  promptly  paid  by  the  respective  railways  at 
stated  times. 

III.  There  are  traffic  balances  which  will  soon  have  to  be 
discharged  arising  out  of  the  operation  of  the  railway  in 
charge  of  your  receivers,  which  will  have  to  be  settled,  ad- 
justed, collected,  or  paid  within  a  short  time,  and  your  re- 
ceivers should  have  full  authority  to  adjust,  settle,  collect,  or 
pay  them  according  to  the  prevailing  usage  existing  among  rail- 
way companies,  so  that  there  may  be  no  interruption  of  the 
relations  between  the  railway  in  charge  of  your  receivers  and 
other  railways  of  the  country. 

Wherefore  your  petitioners  pray  that  an  order  be  entered 
granting  them  authority  to  adjust,  settle,  collect,  and  pay  all 
traffic  balances  arising  out  of  the  operation  of  the  C.  &  D. 

Railway  since  ,   1894,  and   which  may  hereafter   arise 

from  time  to  time.  Z.  &  Z., 

Solicitors  for  the  Receivers. 


ORIGINAL    PROCEEDINGS.  251 


State  of 


County  of ,  ss. 

I,  S.  M.,  on  oath,  state  that  I  am  one  of  the  receivers  of  the 
C.  &  D.  Railway  ;  I  have  read  the  foregoing  petition,  and 
the  facts  therein  stated  are  true,  as  I  verily  believe. 

S.  M. 

Subscribed  and  sworn  to  before  me  this day  of . 

[Seal.]  E.  G., 

Notary  Public. 


No.  301. 

Order  Authorizing  Receiver  to  Settle  Traffic  Balances. 

At  this  day  the  petition  of  the  receivers  for  authority  to 
adjust,  settle,  collect,  and  pay  all  traffic  balances  arising  in 

the  operation  of  the  C.  &  D.  Railway  since ,  1894,  when 

the  receivers  took  possession  of  said  railway,  having  been 
presented  to  the  court,  and  the  court  having  fully  considered 
the  same,  and  being  fully  advised  in  the  premises,  it  is  or- 
dered that  the  receivers  be  and  are  hereby  authorized  to 
adjust,  settle,  collect,  and  pay  all  traffic  balances  between  the 
railway  in  their  charge  and  other  railroads  or  transportation 
companies  arising  out  of  the  operation  of  the  C.  &  D.  Rail- 
way since ,  1894,  and  which  shall  hereafter  arise,  ac- 
cording to  the  usual  methods  prevailing  among  the  railroad 
and  transportation  companies  of  the  country. 

J.  s., 

Circuit  Judge. 


No.  302. 
Order  to  Pay  Rent. 

This  day  came  the  receiver  and  represented  to  the  court 
that  the  installment  of  rent  due  to  the  Northern  Railway 

Company  the day  of ,  18 — ,  under  the  lease  referred 

to  in  the  bill  herein,  has  not  been  paid,  and  that  the  period 


252  RECEIVERS. 

of  ninety  days  grace  provided  in  said  lease  will  expire  the 

day  of  ,   1 8 — ,  and  that  said  receiver  expects  to 

have  on  hand  sufficient  funds  to  pay  said  rental  on  or  before 
said  last-named  date,  and  asks  authority  of  the  court  to 
make  such  payment,  and  thereupon  it  is  ordered  by  the 
court  that  the  receiver  be  and  is  hereby  authorized  to  make 
such  payment.  J.  S., 

Circuit  Judge. 


No.  303. 

Petition  of  Receiver  for   Permission  to  Defend  Suits  and 
Compromise  Claims. 
[^Caption.'] 

Your  petitioner,  S.  M.,  would  respectfully  show  to  your 
honors,  that  prior  to  his  appointment  as  receiver  herein,  cer- 
tain suits  had  been  brought  against  the  C.  &  D.  Railway  Co., 
praying  for  damages  to  person  or  property ;  that  under  the 
laws  of  the  state  of ,  and ,  such  claims,  when  re- 
duced to  judgment,  are  liens  prior  in  right  to  the  mortgage 
issued  by  the  defendant  upon  its  property,  and  that  there 

are  certain  suits  pending  in  the  courts  of  the  state  of , 

and  in  the  Circuit  Court  of  the  United  States  for  the , 

district  of . 

Your  petitioner  further  shows  that  such  suits  or  claims  can 
generally  be  compromised  and  adjusted  at  sums  which  it  is 
to  the  interest  of  the  defendant  and  its  creditors  to  prompt- 
ly accept,  thereby  saving  much  cost  of  litigation  and  other 
considerable  amounts  as  compared  with  the  usual  expense 
and  the  results  of  such  litigation ;  and  that  other  of  such 
suits  will  have  to  be  defended  by  your  petitioner  as  receiver 
at  the  cost  of  the  fund  in  the  hand  of  your  petitioner. 

Your  petitioner,  therefore  prays  that  an  order  of  court  be 
made  herein,  permitting  your  petitioner  as  receiver  of  the 
defendant  corporation  to  appear  and  defend  the  suits  that 
have  heretofore,  or  may  hereafter,  be  brought  in  this  state 
against  the  defendant  corporation    to  recover  damages  for 


ORIGINAI,    PROCEEDINGS.  253 

injuries  to  persons  or  property,  and  that  your  petitioner  be 
given  the  right  and  discretion  to  compromise  and  adjust  and 
settle  any  suits  or  claims  against  the  defendant  corporation 
for  damages  to  persons  or  property,  or  any  claims  arising  in 
the  operation  of  the  road  committed  to  his  charge,  if,  in  the 
judgment  of  his  counsel,  it  is  proper  to  compromise,  adjust, 
and  settle  such  cases  or  claims,  upon  such  terms  as  may  be 
agreed  upon  between  him  and  the  litigants  or  claimants, 
and  as  in  duty  bound,  he  will  ever  pray,  etc.  S.  M. 

[  Verification^  see  No.  85.] 


No.  304. 

Order  Appointing  Special  Master  Commissioner  to   Hear 
and  Report  Claims. 

\Caption?^ 

It  is  now  ordered  by  the  court  that  suits  and  proceedings 
against  the  receiver  herein  upon  any  cause  of  action  or  claim 

against  the  C.  &  D.  Railway  Co.  accruing  prior  to  the 

day  of ,  18 — ,  be  brought  only  by  intervening  petition 

filed  in  this  cause ;  also  that  no  process  of  attachment  or 
execution,  or  other  final  process  whatever  be  issued  against 
said  receiver  for  any  act  of  his  in  the  operation  of  the  C.  & 
D.  Railway  Co.  otherwise  than  upon  leave  granted  upon  in- 
tervening petition.  • 

It  is  further  ordered  that  R.  P.  be,  and  he  hereby  is  ap- 
pointed a  commissioner  of  this  court  for  the  purpose  of  hear- 
ing and  considering  the  above  claims ;  and  also  such  other 
claims  against  the  receiver  herein,  growing  out  of  his  ope- 
ration of  the  road,  as  may  be  brought  before  him ;  and  that 
the  said  commissioner  have  the  power  to  hear  and  consider 
all  such  claims,  and  that  the  receiver  be  directed  to  appear 
before  the  said  commissioner  upon  short  notice  served  upon 
himself  or  upon  an  agent  authorized  by  him  to  be  served  in 
his  stead,  to  answer  any  claim  filed  with  the  said  commis- 
sioner ;  and  that  said  commissioner  have  the  power  to  take 


254  RECEIVERS. 

testimony  and  report  the  same  with  his  findings  to  this 
court,  and  that  unless  such  claimant  or  receiver  shall  within 
thirty  days  after  the  filing  of  the  said  report  appeal  from  the 
same  to  this  court,  said  report  shall  become  final,  and  the 
receiver  herein  is  hereby  directed  and  authorized  thereupon 
to  pay  out  of  any  moneys  coming  into  his  hands  such 
amount  as  the  commissioner  may  award  on  said  claim. 

It  is  further  directed  that  said  receiver  do  not  in  any  case 
hereafter  appear  to  answer  any  garnishment  against  any  of 
his  employees,  but  that  all  claims  against  said  employees  be 
presented  to  the  said  commissioner  hereinbefore  appointed ; 
and  that  upon  his  notice  of  such  claim  the  said  receiver  shall 
forthwith  notify  said  employee,  and  shall  withhold  from  said 
employee  from  money  otherwise  due  a  sufficient  amount  to 
satisfy  said  claim,  and  that  upon  order  of  said  commissioner 
the  same  shall  be  paid  either  to  the  said  employee  or  to  the 
said  claimant,  as  said  commissioner  may  direct  and  adjudge. 

And  it  is  further  hereby  ordered  that  that  certain  order 
heretofore  entered  herein  on  the day  of ,  i8 — ,  re- 
quiring, among  other  things,  that  suits  of  every  kind  against 
the  receiver  be  brought  only  in  the  Circuit  Court  of  the 
United  States,  be  and  the  same  is  hereby  rescinded  and  set 
aside  from  and  after  the  entry  of  this  order,  and  that  the 
order  shall  stand  in  lieu  thereof.  J.  S., 

Circuit  Judge. 


No.  305. 

Order  to  Pay  Claims  Accruing  Prior  to  the  Appointment 
of  the   Receiver. 

If  is  hereby  ordered  that  the  receiver  herein  be  and  is 
hereby  authorized  to  pay  out  of  any  funds  in  his  hands  and 
applicable  to  the  business  of  the  railway  being  operated  by 
him  under  the  order  of  the  court  herein,  and  all  claims 
accruing  during  the  period  of  six  months  immediately  prior 
to  the  appointment  of  the  receiver  herein,  for  supplies,  ma- 


ORIGINAL    PROCEEDINGS.  255 

terials,  wages,  salaries,  and  expenses  incurred  by  agents  and 
employees,  traffic  balances  with  other  common  carriers,  injury 
to  or  loss  of  property  of  shippers  in  transit,  and  for  the  use 
of  the  tracks,  terminals,  or  other  facilities  of  other  railways 
used  by  the  C.  &  D.  Railway  Co.  in  the  ordinary  transaction 
of  its  business.  J.  S., 

Circuit  Judge. 

No.  306. 

Quarterly  Statement  of  Receiver  (i). 

S.  M.,  Receiver,  in  Account  with  C.  &  D.  Railway  Company, 
from  July  i,  18 — ,  to  September  30,  18 — ,  inclusive. 

Accrued  prior  to  appoint-  Accrued  and  col- 

Receipts,  ment  of  receiver  and  col-         lected    under    re- 

lected  under  receivership.  ceivership. 

Balance  July  i,  18 — ,  $ ' 

Agents'  remittances,      ....    $ $ 

Conductors'  remittances,    .     .     .    $ $ 

Mail  earnings, $ $ 

Miscellaneous  earnings,      .     .     .    $ $ 

Express  earnings, $ $ 

Ticket  balances, $ $ 

Mileage  balances, $ $ 

Sundry  railroads, $ $ 

Sundry  individuals, $ $ 

Audited  pay-rolls, $                             $ 

Total, $ $ 

Accrued  prior  to  appoint-  Accrued  under 

Disbursements.  ment  of  receiver.  the  receivership. 

Audited  vouchers, $ $ 

Audited  pay-rolls, $ $ 

Audited  claims, $ $ 

Ticket  balances, $ $ 

Mileage  balances,      .     .     •     .     .    $ $ 

Sundr>'  railroads, $ $ 

Sundry  individuals, $ $ 

Car  trust  notes, $ $ 

Rental  of  roadway, $  $ 

Total, $ $ 


256  RECEIVERS. 

RECAPITULATION. 
Receipts. 

Balance  July  i,  18 — ,     ....  $ 

Accrued  prior  to  appointment  of 
receiver   and   collected  under 

receivership, $ 

Accrued  and  collected  under  re- 
ceivership,      $  Total,  $ 

Disbursements." 

Accrued  prior  to  appointment  of 

receiver, $ 

Accrued  under  receivership,  .     .   $  Total,  $ 

Balance  September  30,  18 — ,    ....     $ 

(i)  As  to  receiver's  accounts  generally,  see  Beach's  Modern  Eq. 
Prac,  Sec.  748. 


No.  307. 

Certificate  of  Special  Master  to   Statement   of  Receiver. 

I,  A.  H.,  special  master,  hereby  certify  that  I  have  exam- 
ined the  accounts  of  S.  M.,  receiver,  and  the  receipts  and 
disbursements  for  the  quarter  ending  September  30,  18 — 
[the  period  covered  by  the  foregoing  statement],  and  that  I 
find  the  same  correct  and  as  shown  in  said  statement. 

Given  under  my  hand  this day  of ,  18 — . 

A.  H., 
Special  Master. 


No.  308. 

Petition  for  Permission  to  make  Receiver  Party  to  a  Suit 
in  a  State  Court  (i). 
[^Caplion.^ 

C.  L.,  the  above-named  petitioner,  respectfully  shows  to 
your  honors,  that  an  action  is  now  pending  in  the  superior 

court  of ,  a  court  of  the  state  of ,  sitting  in  the  city 

of ,  in  said  state,  numbered on  the  docket  of  said 


ORIGINAL   PROCEEDINGS.  257 

court,  wherein  said  C.  L.  is  plaintiff  and  the  C.  &  D.  Rail- 
way Company  is  defendant.  In  said  action  your  petitioner 
avers  that  said  defendant  has,  without  her  consent  and  au- 
thority, and  without  authority  of  law,  constructed  a  railroad 
track  on  premises  owned  by  your  petitioner  on  the  south 
side  of  S  street,  east  of  H  street,  in  said  city;  that  said 
defendant  has  also  constructed  a  railroad  track  across 
S  street  in  the  neighborhood  of  said  premises  of  your 
petitioner  without  authority  of  law  or  the  consent  of  your 
petitioner;  that  said  defendant  was  at  the  time  said  action 
was  brought  maintaining  and  operating  said  tracks,  and 
thereby  obstructing  the  ingress  and  egress  of  your  said  peti- 
tioner to  her  said  property,  and  using  her  property  ille- 
gally. In  said  action  your  petitioner  prayed  that  the  said 
defendant,  the  C.  &  D.  Railway  Company,  might  be  perpet- 
ually enjoined  from  maintaining  and  operating  said  tracks, 

and  required  to  pay  the  plaintiff  the  sum  of  dollars 

damages  for  the  use  of  same  already  had.     On  the day 

of ,  said  superior  court  of ,  made  an  order,  upon  the 

motion  of  your  petitioner,  enjoining  the  said  C.  &  D.  Railway 
Company,  until  further  orders  of  said  court,  from  maintaining 
and  operating  said  tracks  on  the  premises  aforesaid  of  your 
petitioner  and  on  said  S  street,  upon  your  petitioner's  giv- 
ing bond  in  the  sum  of dollars.     Said  bond  was  that 

day  given,  and  the  injunction,  as  ordered  by  the  court,  was 
issued  and  served  upon  the  C.  &  D.  Railway  Company.     On 

the day  of said  railway  company  filed  its  answer 

in  said  cause,  taking  issue  with  the  averments  of  your  peti- 
tioner that  said  track  on  S  street  was  laid  without  the  au- 
thority of  law,  and  while  admitting  that  the  track,  at  the 
time  the  petition  of  said  C.  L.  was  filed  in  said  court,  was 
laid  upon  the  premises  of  your  petitioner,  averring  further 
that  since  said  track  had  been  removed,  and  was  then  sit- 
uated upon  the  premises  of  said  railway  company;  and  at 
the  same  time  said  railway  company  filed  its  motion  piaying 

said  court  to  dissolve  said  order  of  injunction.     On  the 

day  of ,  by  leave  of  said  court,  your  petitioner  filed  her 


258  RECEIVERS. 

reply  in  said  court,  admitting  that  said  track  that  was  upon 
her  premises  at  the  time  said  action  had  been  begun  had 
been  moved,  but  averring  that  the  same  as  then  located  was 
still  upon  the  property  of  your  petitioner. 

Said  injunction  is  still  in  full  force  and  unrevoked. 

Afterwards  in  this  suit  brought  by  A.  B.  against  the  C.  & 
D.  Railway  Company  in  this  court,  your  honors,  upon  the^ 

day  of ,  18 — ,   appointed  S.   M.   receiver   of  said 

railroad  company.     Said  S.  M.  now  claims  that  the  order  of 

injunction  of  said  superior  court  of is  not  operative  and 

binding  upon  him;  and  further,  that,  as  your  petitioner  is 
informed,  he,  the  said  S.  M.,  is  not  a  party  to  said  cause  in 

said  superior  court  of ;    and  said  S.  M.  is  now  using, 

maintaining,  and  operating  said  tracks  in  defiance  of  said 

orders  of  said  superior  court  of ,  and  to  the  prejudice  of 

your  petitioner. 

Your  petitioner  therefore  prays  the  leave  of  this  court  to 
sue  said  S.  M.  as  such  receiver,  and  to  cause  him  to  be  made 
a  party  defendant  in  said  cause  now  pending  in  said  superior 

court  of ,  and  that  he  be  required  to  submit  himself  fully 

to  the  jurisdiction  of  said  court  with  reference  to  the  right  of 
said  C.  &  D.  Railway  Company,  and  of  himself  as  its  re- 
ceiver, to  construct,  maintain,  and  operate  the  tracks  of  which 
your  petitioner  in  said  action  complains.  C.  L. 

R.  X., 

of  Counsel  for  Petitioner. 

( I )  It  is  a  general  rule,  that  before  suit  is  brought  against  a  receiver 
that  leave  of  court  must  be  had  from  the  court  appointing  such  receiver, 
and  suing  without  such  leave  is  contempt  of  the  court  appointing  him. 
See  Beach's  Modern  Eq.  Prac,  Sec.  744  ;  Wiswell  vs.  Sampson,  14  How, 
65 ;  Davis  vs.  Gray,  16  Wall.,  203  (218);  Naumburg  vs.  Hyatt,  24  Fed. 
Rep.,  898 ;  Thompson  vs.  Scott,  4  Dill.,  508.  But  see  also  25  Stat,  at  L., 
chap.  866,  sec.  3,  p.  436  ;  24  Stat,  at  L.,  chap.  373.  sec.  3,  p.  554,  and  for 
cases  involving  a  construction  of  this  act,  see  Missouri  Pac.  Ry.  Co.  vs. 
Texas  Pac.  Ry.  Co.,  41  Fed.  Rep.,  310  (314);  Central  Trust  Co.  vs.  St. 
Louis,  etc.,  Ry.  Co.,  41  Fed.  Rep.,  551  ;  Atkins  vs  Wabash  Ry.  Co.,  41 
Fed.  Rep.,  193  (194);  Pine  Lake  Iron  Co.  vs.  LaFayette  Car  Works,  53 
Fed.  Rep.,  853.     As  to  torts,  see  McNulta  z/5.Lockridge,  142  U.  S.,  i. 


ORIGINAL   PROCEEDINGS.  259 

No.  309, 
Order  Granting  Leave  to  the  Above  Petitioner. 

The  petition  of  C.  L-,  for  leave  to  make  S.  M.,  receiver  in 
this  cause,  party  defendant  in  an  action  now  pending  in  the 

superior  court  of ,  numbered on  the  docket  of  said 

court,  wherein  said  C.  L.  is  plaintiff  and  the  C.  &  D.  Rail- 
way Co.  is  defendant,  having  been  presented  and  considered 
by  the  court,  it  is  now  ordered  that  the  prayer  of  said  peti- 
tion be  granted,  and  that  C.  L.  be  permitted  to  cause  said 
S.  M,,  the  receiver  heretofore  appointed  in  this  suit,  to  be 
made  a  party  defendant  in  said  cause  pending  in  the  supe- 
rior court  of ,  and  that  said  S.  M.,  receiver,  submit  him- 
self fully  to  such  orders  as  may  be  made  by  said  superior 

court  of in  said  action  now  pending  therein. 

J.S., 
United  States  Circuit  Judge. 


No.  310. 

Intervening  Petition. 

For  Petitions  of  Intervention,  consult  forms  Nos.  327  to  333. 
The  necessary  changes  can  be  readily  made  for  pleading  in 
original  suit.     See  note  to  No.  308. 


No.  311. 

Order  Discharging  Railway  Receivers  and  Restoring 

Property. 

A  decree  having  been  entered  in  this  suit  upon  the 


day  of  ,  wherein   and   whereby    it   was,  among   other 

things,  ordered,  adjudged,  and  decreed  that  the  C.  &  D.  Rail- 
way Company  should,  on  or  before  the  expiration  of  thirty 
days  from  the  date  of  the  said  decree,  pay  into  this  court,  or 
into  the  hands  of  a  depository  to  be  named  by  this  court,  to 


26o  RECEIVERS. 

the  credit  of  this  suit,  for  the  use  and  benefit  of  the  holders 
of  the  bonds  and  unpaid  coupons  secured  by  the  mortgage 
of  December  i,  i8 — ,  and  the  several  mortgages  and  the  cer- 
tain indenture  supplemental  thereto,  the  sum  of dollars, 

together  with  the  amount  of  interest  accrued  or  to  accrue  on 
the  said  bonds  from  the  ist  of  December,  i8 — ,  to  the  time 
of  such  payment,  and  also  a  sum  of  money  sufficient,  in  ad- 
dition, to  defray  the  costs  of  this  action. 

On  reading  and  filing  a  satisfaction  piece,  dated  the  

day  of ,  duly  executed,  acknowledged,  and  delivered  by 

the  A.  B.  Company,  of  the  three  certain  indentures  of  mort- 
gage, dated  respectively  December  i,  1880,  December  i^ 
1886,  and  December  i,  1887,  and  a  certain  other  satisfaction 
piece,  dated  the  14th  day  of  October,  1890,  duly  executed, 
acknowledged,  and  delivered  by  the  A.  B.  Company,  of  a  cer- 
tain indenture,  dated  March  i,  1882,  being  the  same  mort- 
gages and  the  indenture  referred  to  and  described  in  the  bill 
of  complaint  herein,  by  which  satisfaction  pieces  the  A.  B. 
Company  certifies  that  the  three  mortgages  and  the  certain 
indenture  as  aforesaid,  and  the  bonds  secured  by  the  same, 
are  paid  and  satisfied,  and  consents  that  the  said  mortgages 
and  the  said  indenture  be  discharged  of  record. 

And  on  reading  and  filing  a  stipulation,  dated ,  and 

signed  by  the  counsel  for  all  parties  to  this  suit,  by  which  it 
appears  that  all  of  the  bonds  secured  by  the  said  mortgages 
and  by  the  said  indenture,  and  of  all  the  interest  due  thereon, 
have  been  paid  by  the  C.  &  D.  Railway  Company  to  the  A. 
B.  Company,  trustee;  and  by  which  it  further  appears  that 
the  C.  &  D.  Railway  Company  has  also  paid  and  discharged 
all  the  other  sums  of  money  which  by  the  said  decree  it  was 
required  to  pay;  and  by  which  stipulation  it  is  also  con- 
sented that  a  proper  order,  satisfying  and  discharging  the 

said  decree  of  the day  of ,  may  be  entered  in  this 

suit. 

And  on  reading  and  filing  the  petition  of  the  C.  &  D. 
Railway  Company,  verified  the  day  of ,  praying 


ORIGINAL   PROCEEDINGS.  261 

that  the  receivers  of  the  railway  and  property  of  the  peti- 
tioner be  upon  the day  of discharged,  and  the  said 

railway  and  property  restored  to  the  petitioner. 

And  on  reading  and  filing  the  report  of  the  receivers, 

Messrs.  S.  M.  and  H.  C,  verified  on  the  day  of  , 

showing,  among  other  things,  the  total  amount  of  their  re- 
ceipts and  disbursements,  substantially,  to  the  date  of  the 
hearing  upon  the  motion  for  the  entry  of  this  decree,  con- 
taining also  a  statement  of  suits  now  pending  against  them 
as  receivers,  or  against  the  C.  D.  Railway  Company  and  any 
of  its  ancillary  companies,  and  of  all  claims  filed  against  or 
presented  to  said  receivers,  or  said  railway  company,  so  far 
as  they  have  come  to  the  knowledge  of  the  said  receivers, 
and  a  general  statement  of  the  outstanding  liabilities  of  the 
said  receivers,  growing  out  of  the  possession,  operation,  and 
management  of  the  property  of  the  C.  &  D.  Railway  Com- 
pany by  said  receivers. 

And  Messrs.  S.  M.  and  H.  C,  receivers  of  all  of  the  said 
property,  appearing  by  R.  Z.,  Esq.,  their  solicitor,  and  the 
matters  and  things  hereinbefore  suggested  being  submitted 
to  the  court,  and  the  court  being  advised. 

Now,  on  motion  of  R.  X.,  Esq.,  of  counsel  for  the  peti- 
tioner, the  C.  &  D.  Railway  Company, 

It  is  hereby  ordered,  adjudged,  and  decreed  as  follows: 

First.     That  the  said  decree  of  the day  of ,  is,  in 

all  respects,  satisfied  and  discharged,  in  so  far  as  the  same 
requires  the  payment  by  the  C.  &  D.  Railway  Company  of 
any  sums  of  money.  This  cause,  however,  being  retained  as 
and  for  the  purposes  hereinafter  provided. 

Second.  That  the  C.  &  D.  Railway  Company  has  duly 
and  fully  paid  to  the  A.  B.  Company,  trustee,  all  the  sums 
of  money  which  by  the  said  decree,  were  directed  to  be  paid  ; 
the  said  payments  amounting  to  the  sum  of dollars,  to- 
gether with  the  amount  of  interest  accrued  upon  the  said 
sum  from  the  ist  day  of  December,  18 — ,  to  the  date  of  the 
payment  thereof;  and  the  said  railway  company  has  also 


262  RECEIVERS. 

duly  and  fully  paid  to  the  said  A.  B.  Company,  trustee,  and 
to  its  counsel,  in  full,  all  its  and  their  reasonable  commis- 
sion, charges,  fees,  and  disbursements  in  the  execution  of  the 
trust,  and  in  the  prosecution  of  the  litigation  herein,  which 
said  several  sums  and  amounts  have,  by  it  and  them  been 
accepted  by  them  in  full  for  its  and  their  services  rendered 
herein,  and  the  said  railway  company  has  also  duly  and  fully 
paid  all  costs  and  allowances  which  by  the  said  decree  were 
directed  to  be  paid. 

Third.     That   on   the day   of ,  at   the   hour  of 

noon  that  day,  Messrs.  S.  M.  and  H.  C,  as  receivers,  are 
hereby  ordered  and  directed  to  deliver  to  the  C.  &  D.  Rail- 
way Company  all  the  railroads  and  other  property  of  the  said 
C.  &  D.  Railway  Company,  the  D.  &  W.  Railway  Company, 
etc.  \name  all  the  railways  included  in  this  order\  wheresoever 
situated,  whereof  they  took  possession  as  receivers,  under  and 
pursuant  to  the  orders  of  this  court,  and  under  and  pursuant  to 
the  orders  in  causes  ancillary  hereto,  and  which  shall  then  re- 
main in  their  possession  or  under  their  control,  together  with 
all  the  assets  of  every  name  and  nature,  funds,  books  and  ac- 
counts, papers  and  vouchers  in  their  possession,  or  under 
their  control  as  receivers ;  and  the  Said  receivers  shall,  con- 
temporaneously with  the  delivery  of  the  said  railroads  and 
property,  assign  and  transfer  to  the  C.  &  D.  Railway  Com- 
pany all  the  assets,  uncollected  accounts,  and  choses  in 
action  of  the  said  C.  &  D.  Railway  Company,  or  of  either  of 
the  before-mentioned  railway  companies  remaining  in  their 
hands,  and  which  have  accrued  to  them  as  such  receivers 
from  the  possession  and  operation  of  said  lines  of  railway  or 
of  any  of  them  ;  and  the  said  C.  &  D.  Railway  Company,  on 

the  day  and  at  the  hour  aforesaid,  to  wit,  upon  the day 

of ,  at  the   hour  of  noon  of  that  day,  shall  receive  and 

take  possession  of  all  the  railroads  and  other  properties,  real, 
personal,  and  mixed,  and  of  all  the  funds  and  assets, 
books  and  accounts,  papers  and  vouchers,  claims,  demands 
and  choses  in  action  in  the  hands  of  S.  M.  and  H.  C.  afore- 


ORIGINAL   PROCEEDINGS.  263 

said,  receivers  of  the  C.  &  D.  Railway,  heretofore  appointed 
and  now  acting  under  orders  made  in  this  cause  and  in  the 
ancillary  causes  between  the  same  parties  pending  in  the  cir- 
cuit courts  of  the  United  States  for  [here  name  all  the  courts 
wJierein  ancillary  proceedings  have  been  had] ;  and  upon  such 
transfer,  assignment,  and  delivery  of  the  property  aforesaid 
by  the  receivers  to  the  railway  company,  the  property  of  the 
said  C.  &  D.  Railway  Company  and  of  the  other  companies 
heretofore  mentioned  shall  become  liable  for  all  claims  and 
demands  accrued,  accruing,  or  to  accrue  against  said  receiv- 
ers, arising  out  of  their  possession  and  operation  of  the  said 
railroads  and  property  which  are  and  have  been  in  their 
hands  or  under  their  control  as  receivers,  including  all 
claims  or  demands  against  them  arising  out  of  their  opera- 
tion of  the  E.  &  F.  Railroad,  which  has  heretofore  been  sur- 
rendered under  orders  made  in  this  cause  and  in  the  ancillary 
cause  pending  in  the  circuit  court  of  the  United  States  for  the 

district  of at ,  and  also  all  claims  and  demands 

existing  against  said  receivers  under  their  receivership  by 
order  of  appointment  made  in  the  cause   pending  in  the 

circuit  court  of  the  United  States    for  the district  of 

at  ,  wherein  the  Safe  Deposit  Company  of is 

plaintiflf,  and  the  C.  &  D.  Railway  Company,  the  E.  &  F. 
Railroad  Company  and  others  are  defendants ;  and  also  all 
the  current  liabilities  of  said  receivers,  and  all  contracts  for 
which  the  said  receivers  are  or  may  be  responsible. 

Fourth.     That  the  said  C.  &  D.  Railway  Co.,  and  those 

claiming  under  them,  shall  take  and  receive,  on  said day 

of ,   18 — ,   the  railroads  and  properties  so  transferred, 

assigned,  and  delivered  as  hereinbefore  ordered,  subject  to  all 
claims,  demands,  and  liabilities  now  existing,  or  which  here- 
after may  be  made  against  said  receivers,  arising  out  of  their 
receivership,  and  this  court  reserves  and  retains  jurisdiction 
over  the  said  railroads  and  properties,  and  the  said  parties 
hereto  and  those  claiming  under  them,  for  the  purpose  of 
determining  in  this  cause,  or  having  determined  in  any  of 


264  RECEIVERS. 

the  circuit  courts  of  the  United  States  in  any  of  the  ancil- 
lary causes  having  ancillary  jurisdiction  herein,  all  such 
claims,  liabilities,  and  demands,  and  for  the  purpose  of  fully 
protecting  the  receivers  against  any  liability  on  any  claims 
or  demands  existing  or  to  exist  against  them,  and  for  the 
purpose  of  protecting  those  having  claims  against  said  re- 
ceivers. 

Fifth.  That  this  cause  is  retained  and  kept  open  for  the 
purpose  of  ascertaining  and  determining  all  claims,  demands, 
and  liabilities  against  said  receivers,  and  against  the  property 
in  their  possession,  and  to  be  surrendered  by  them,  which 
have  arisen  or  may  arise  out  of  their  said  receivership.  All 
such  claims,  demands,  and  liabilities,  if  not  paid  by  the  C. 
&  D.  Railway  Co.  in  due  course,  shall  be  made  and  present- 
ed by  intervention  in  this  cause,  or  in  the  causes  ancillary 
hereto,  for  the  purpose  of  being  ascertained  and  determined 
in  and  by  such  proper  intervention  proceedings ;  and  any 
orders,  judgments,  or  decrees  so  rendered  in  such  proceedings 
may  be  enforced,  and  shall  only  be  enforced,  against  the 
property  of  the  said  railway  company  to  the  same  extent  that 
judgments  could  have  been  enforced  if  said  property  had 
not  been  surrendered  into  the  possession  of  said  company 
but  was  still  in  the  possession  of  said  receiver.  Such  inter- 
vention proceedings  must  be  filed  in  this  cause  in  this  court, 
or  in  any  of  the  circuit  courts  of  the  United  States  having 
jurisdiction  in  any  of  the  ancillary  causes,  on  or  before  the 
I  St  day  of  January,  18 — ,  and  after  that  date  no  further  in- 
tervention shall  be  permitted  in  this  cause,  and  the  rights  of 
any  claimants  who  shall  not,  on  or  before  that  date,  have 
commenced  intervention  proceedings  to  avail  themselves  of 
the  remedies  herein  provided  for  their  benefit,  shall  cease 
and  determine.  The  receivers  shall  advertise  in  daily  news- 
papers published  respectively  in  \name  of  cities  or  towns]  the 
date  of  the  intended  delivery  of  the  said  property  to  the  said 
company,  and  shall  in  said  advertisement  notify  all  claimants 
to  present  their  said  claims  to  the  C.  &  D.  Railway  Co.,  and 


ORIGINAL   PROCEEDINGS.  265 

if  the  same  are  not  settled  or  adjusted,  that  then  the  said 
claimants  shall  intervene  in  the  manner  aforesaid,  and  within 
the  time  aforesaid,  to  wit,  on  or  before  the  ist  day  of  Janu- 
ary, 18 — .  The  said  advertisement  shall  be  commenced 
within  five  days  after  the  entry  of  this  order,  and  shall  be 
inserted  once  a  week  for  three  successive  weeks. 

Sixth.  That  nothing  in  this  decree  contained  is  intended 
to  affect,  or  shall  be  construed  as  affecting,  the  status  of  any 
pending  or  undetermined  litigation  in  which  said  receivers 
appear  as  parties.  Such  litigations  may  continue  to  deter- 
mination in  the  name  of  the  receivers,  but  for  the  use  of  the 
C.  &  D.  Railway  Co.,  and  at  its  cost  and  expense,  and  with 
the  right  to  that  company,  should  it  be  so  advised,  to  appear 
and  be  substituted  in  any  such  litigation. 

Seventh.     That  on  the day  of ,  on  the  day  fixed 

for  the  delivery  of  said  properties  by  the  receivers  to  the  said 
railway  company,  the  title  or  right  of  possession  of  S.  M. 
and  H.  C,  receivers,  as  fixed  and  determined  by  the  certain 

order  made  in  this  cause,  dated ,  and  filed ,  and  the 

said  title  or  right  of  possession  ,  as  fixed  and  determined  by 
certain  subsequent  orders  made  in  this  cause,  extending  and . 
continuing  the  said  receivership  to  the  railroads  and  proper- 
ties hereinbefore  mentioned,  shall  cease  and  terminate. 

Eighth.  That  the  receivers'  quarterly  accounts  and  the 
reports  of  T.  M.,  Esq.,  and  A.  P.,  Esq.,  masters,  as  the  same 
have  from  time  to  time  been  made  to  this  court,  which  re- 
ceivers' and  master's  reports  were  respectively  filed  as  fol- 
lows :  \here  set  forth  dates  of  filing.,  as,  receivers'  report  for 
November  and  December,  1888,  filed  March  4, 1888,  master's 
report  thereon  filed  May  28,  1889],  are  hereby,  and  each 
of  the  said  receivers'  and  master's  reports  respectively,  is  in 
all  things  confirmed  and  approved,  the  parties  having  ex- 
pressly waived  the  right  under  the  rules  to  file  objections 
thereto. 

Ninth.  That  the  receivers  shall  file  an  additional  report 
containing  statement  of  the  receipts  and  disbursements  from 


266  RECEIVERS. 

the  ist  day  of  April,  i8 — ,  to  the  time  of  the  delivery  of  the 
property  aforesaid,  to  wit,  July  i,  i8 — ,  and  simultaneously 
with  its  submission  to  the  master  mail  a  duplicate  of  such 
report  to  the  defendant,  the  C.  &  D.  Railway  Co.,  to  its  New 
York  office,  and  thereupon,  without  further  order,  said  report 
shall  stand  referred  to  the  master  heretofore  appointed  in 
this  cause,  and  he  shall  forthwith  proceed  to  pass  upon  the 
same  and  report  to  this  court.  Within  five  days  after  such 
report  of  the  master  has  been  filed,  objections,  if  any  there- 
to, shall  be  filed,  and,  if  no  objections  are  filed  thereto, 
the  same  may  be  submitted  to  the  court  without  further 
notice  ;  and  if  and  when  approved,  the  said  receivers  shall 
be  finally  discharged  as  to  an  accounting  with  the  C.  &  D. 
Railway  Co.,  and  the  other  companies  hereinbefore  mention- 
ed, and  their  bonds  cancelled  and  discharged. 

Tenth.  That  the  C.  &  D.  Railway  Co.,  and  the  said  re- 
ceivers, S.  M.  and  H.  C,  may  apply  at  the  foot  of  this  de- 
cree for  such  other  and  further  relief  as  may  be  just. 

J.S., 
Circuit  Judge. 
We  hereby  consent  to  the  entry  of  the  foregoing  decree. 

The  A.  B.  Co., 
By  X.  &  X.,  Solicitors. 
M.  P.  Railway  Co., 
By  Z.  &  Z.,  Solicitors. 


No.  312. 

Assignment   by  Railway  Receivers  of   Choses    in  Action, 
etc.,  on  the  Surrender  of  the  Property. 

Know  all  men  by  these  presents : 

Whereas,  we,  S.  M.  and  H.  C,  receivers  of  the  C.  &  D. 
Railway,  duly  appointed  and  acting  as  such  under  certain 
orders  and  decrees  made  in  a  certain  suit  in  equity  pending 

in  the  circuit  court  of  the  United  States  for  the district  of 

,  wherein  the  A.  B.  Company  is  plaintiflf  and  the  C.  &.  D. 


ORIGINAL    PROCEEDINGS.  267 

Railway  Company  and  others  are  defendants,  and  also  under 
certain  orders  and  decrees  made  in  certain  ancillary  causes 
between  the  same  parties  pending  in  the  circuit  court  of  the 
United  States  for  \jiame  the  courts^  have  been  ordered  and 
directed  by  the  certain  order  entered  in  said  main  cause  in 

the  circuit  court  of  the  United  States  for  the  district  of , 

on  the day  of ,  to  deliver  at  the  hour  of  noon  on 

the  ist  day  of  July  i8 — ,  to  the  C.  &  D.  Railway  Company  all 
the  railroads  and  other  property  of  the  C.  &  D.  Railway  Com- 
pany, the  D.  &  W.  Railway  Company,  \etc.^  naming  all  the 
companies^  wheresoever  situated,  whereof  they  are  in  pos- 
session as  receivers  under  and  pursuant  to  the  orders  of  the 
courts  hereinbefore  referred  to ;  and, 

Whereas,  by  said  order  of  the day  of ,  said  receiv- 
ers were  directed  simultaneously  with  the  delivery  of  the 
aforesaid  railroads  and  property,  to  assign  and  transfer  to  the 
C.  &  D.  Railway  Company  all  of  the  assets,  uncollected  ac- 
counts, and  choses  in  action  of  the  said  C.  &  D.  Railway 
Company,  or  of  either  of  the  before-mentioned  railroad  com- 
panies, remaining  in  their  hands  and  which  have  accrued  to 
them  as  such  receivers  from  the  possession  and  operation  of 
said  lines  of  railway,  or  either  of  them ;  and 

Whereas,  orders  have  been  entered  in  each  of  said  ancillary 
suits  between  the  same  parties  in  the  above-named  circuit 
courts  of  the  United  States  for,  [naming  them^  expressly 
approving  and  confirming  said  order  of  said  circuit  court  of 
the  United  States  for  the district  of ,  of  date, . 

Now,  therefore,  in  consideration  of  the  premises,  and  pur- 
suant to  the  orders  and  directions  of  the  courts  made  as  here- 
inabove stated,  we,  the  said  S.  M.  and  H.  C,  receivers  of  the 
C.  &  D.  Railway  (duly  appointed  and  acting  as  such  by  virtue 
of  the  orders  and  decrees  in  the  aforesaid  suits  in  the  above- 
mentioned  courts),  do  hereby  assign,  transfer,  and  set  over  to 
the  C.  &  D.  Railway  Company  all  and  singular  the  assets, 
uncollected  accounts,  and  choses  in  action  of  the  said  C.  &  D. 
Railway   Company,    the  D,  &  W.  Railway    Company,    etc. 


268  RECEIVERS. 

\naming  them^  remaining  in  our  hands  at  the  date  of  the 
delivery  of  said  railways  and  properties  by  us  to  the  said  C. 
&  D.  Railway  Company  as  aforesaid,  and  which  have  accrued 
to  us  as  receivers  from  the  operation  and  possession  of  said 
lines  of  railway  or  either  of  them. 

This  assignment  to  become  effective  at  the  hour  of  noon  on 
the  I  St  day  of  July,  i8 — ,  simultaneously  with  the  delivery 
of  the  possession  of  the  railroads  and  properties  of  the  fore- 
going companies  to  the  C.  &  D.  Company  as  required  by  the 
orders  and  decrees  of  the  courts  hereinabove  referred  to. 

In  witness  whereof  we  have  hereunto  signed  our  names 

and  affixed  our  seals  this day  of ,  i8 — . 

S.  M.  \Seai:\ 
H.  C.  \seai:\ 

[Acknowledgment y  see  No.  313.] 


No.  313. 

Acknowledgment  to  Assignment  by  Receiver. 

The  United  States  of  America, 

State  of ,  County  of ,  ss. 

Be  it  remembered,  that  on  this  day  of ,  before 

me,  E.  G.,  a  notary  public,  duly  commissioned,  qualified,  and 
acting  in  and  for  the  county  and  state  aforesaid,  came  S.  M., 
one  of  the  receivers  of  the  C.  &  D.  Railway,  and  who  is  per- 
sonally known  to  me  to  be  the  identical  person  described  in, 
and  who  executed  and  signed,  the  foregoing  instrument  of 
writing,  and  duly  acknowledged  that  he  executed  the  same 
as  his  free  act  and  deed  for  the  purposes  and  consideration 
therein  expressed. 

In  witness  whereof,  I  have  hereunto  set  my  hand 
\Seal^  and  affixed  my  official  seal  the  day  and  year 

last  above  written. 

My  commission  expires  on  the day  of ,  1893. 

E.  G.,  Notary  Public. 
(Similar  acknowledgment  for  other  receiver.) 


ORIGINAL    PROCEEDINGS.  269 

No.  314. 

Advertisement  of  Railway  Foreclosure  Sale. 
For  form,  see  Beach's  Modem  Equity  Practice,  p.  1123. 


No.  315. 
Decree  of  Foreclosure  and  Sale  of  a  Railway. 

For  form,  see  Beach's  Modern  Equity  Practice,  p.  1185. 


270  RECEIVERS. 


ANCILLARY  PROCEEDINGS.* 

No.  316. 

Ancillary  Bill.  In  re  Receivers  for  a  Manufacturing  Com- 
pany where  Receivers  were  Appointed  by  a  State  Court 
before  a  Federal  Court"  took  Jurisdiction. 

[Caption.^ 

To  the  honorable  Judges  of  the  Circuit  Court  for  the 

district  of ,  sitting  in  equity  : 

A.  B.,  a  citizen  of  the  state  of ,  and  residing  in  the 

township  of ,  in  said  state  of ,  on  behalf  of  himself 

and  all  other  creditors  and  stockholders  of  the  C.  D.  Com- 
pany, defendant  herein,  and  who  may  hereafter  become 
parties  to  this  suit  and  contribute  to  the  expenses  thereof, 
brings  this  bill  of  complaint  against  the  C.  D.  Company,  a 
corporation  organized  and  existing  under  the  laws  of  the 
state  of  New  Jersey  and  citizen  of  the  said  state  of  New 
Jersey,  and  respectfully  shows  to  the  court  as  follows : 

First.     l)hat  your  orator,  A.  B.,  is  and  was  at  the  date  of 

the  commencement  of  this  suit  a  citizen  of  the  state  of , 

residing  in  the  township  of ,  and  was,  at  said  date,  and 

still  is,  a  shareholder  of  the  C.  D.  Company,  and  that  the  par 
and  also  the  market  value  of  the  capital  stock  so  held  by  the 
said  party  as  aforesaid  is  and  was  at  the  date  of  the  com- 
mencement of  this  suit  and  at  all  times  of  greater  value  than 
thousand  dollars. 

That  the  C.  D.  Company  is  a  corporation  duly  incorpo- 
rated and  existing  under  the  laws  of  the  state  of  New  Jersey, 
and  is  and  at  all  times  has  been  a  citizen  of  said  state  of  New 
Jersey,  located  and  carrying  on  business  in  said  state. 

*As  to  jurisdiction,  see  Foster's  Fed.Prac,  See.  21,  and  Beach's  Modern 
Eq.  Prac,  Sec.  718,  and  note.  , 


ANCILIvARY   PROCEEDINGS.  27 1 

That  said  company  was  duly  organized  under  an  act  of  the 
legislature  of  the  said  state  of  New  Jersey,  entitled,  "An  act 
concerning  corporations,"  dated  April  7,  1875,  ^^^  the  several 
supplements  thereof,  and  by  a  certificate  of  organization  bear- 
ing date  of  the day  of ,  L887,  and  recorded  on  the 

day  of ,  1887,  in  the  office  of  the  clerk  of  the  county 

of ,  and  afterwards  on  the  same  day  filed  with  the  secre- 
tary of  state  at  Trenton,  in  said  state,  and  that  the  principal 
office  of  the  said  corporation  is  located  within  the  county  of 
,  in  said  state.  That  the  authorized  capital  of  said  corpo- 
ration as  fixed  by  the  said  certificate  is dollars,  divided 

into hundred  shares  of  the  par  value  of hundred 

dollars  each,  and  that  the  said  stock  was  thereafter  increased 

to  the  sum  of million  dollars,  of   which  million 

dollars  is  preferred  stock  and million  dollars  common 

stock,  all  of  which  is  now  outstanding. 

Second.  That  the  objects  for  which  the  said  corporation 
was  formed  are  to  manufacture  and  sell  [cordage  and  binder 
twine\  and  similar  commodities,  and  for  the  carrying  on  of 
such  similar  business  as  more  fully  appears  by  reference  to 
the  certificate  of  organization,  a  true  copy  of  which  is  an- 
nexed to  this  bill  and  marked  "  Schedule  A,"  and  made  a 
part  of  this  bill  of  complaint. 

That  soon  after  the  organization  of  said  corporation  it 
entered  upon  the  manufacture  and  sale  of  \cordage  and 
binder  twine']  and  such  other  business  as  is  authorized  by 
said  certificate  of  organization,  and  has  since  such  time 
prosecuted  the  same  in  the  several  states  of  New  Jersey,  New 
York,  and  Ohio,  in  all  of  which  states  it  is  now  operating 
[cordage  and  binder  twine]  mills. 

That  the  said  corporation  has  real  or  personal  property  in 
all  of  the  said  states,  and  is  now  largely  engaged  in  active 
manufacturing  in  each  of  the  said  states,  employing  in  all  a 

number  of  persons  amounting  to or  thereabouts,  and 

operating  directly  or  indirectly  a  number  of  cordage  mills. 

Third.     On   information  and  belief,  on   the day   of 

,  1893,  the  payment  of  a  debt  of dollars,  due  on 


27a  RECEIVERS. 

demand,  was  demanded  of  the  said  C.  D.  Company,  and  re- 
mained unpaid  and  default  existed  in  the  payment  thereof, 
the  said  corporation  not  having  sufficient  funds  to  pay  the 

same,  and  other  debts  aggregating dollars  or  thereabouts 

on  the day  of ,  1893,  will  become  due,  which  said 

corporation  is  unable  to  pay.  That  the  further  debts  will 
mature  within  a  few  days  to  the  amount  of  several  hundred 

thousand  dollars,  and  that  during  the  entire  month  of 

debts  will  mature,  aggregating  in  all dollars. 

That  in  the  months  of  June,  July,  August,  and  September, 
other  large  indebtedness  on  commercial  paper  and  otherwise 
will  mature,  exceeding  in  all dollars. 

That  the  corporation  is  without  funds  to  pay  the  debts 
maturing  at  the  present  time,  and  will  make  default  in  pay- 
ment of  such  other  debts  accruing  within  a  few  days,  and 
that  in  the  present  situation  of  affairs  it  is  not  possible  to  pay 
the  same. 

That  the  assets  of  the  corporation,  which  are  valuable,  are 
not  available,  either  for  the  payment  of  its  debts  or  for  the 
raising  of  money  to  pay  the  same. 

That  the  corporation  is  unable  to  meet  its  obligations  as 
they  mature,  and  has  no  prospect  at  the  present  time  of 
meeting  the  same  or  of  resuming  its  usual  business,  and  that 
the  corporation  is  insolvent . 

Fourth.  Your  orator  further  says  that  the  assets  of  the 
corporation  consist  of  \cordage\  mills  owned  or  leased  in  the 
several  states  hereinabove  mentioned,  together  with  the  raw 
stock  in  process  of  manufacture,  and  manufactured  stock, 
and  book  accounts  and  bills  receivable  the  greater  part  of 
all  of  which  are  scattered  through  various  states,  and  the 
same  are  likely  to  be  attached  by  creditors  without  the  state 
of  New  Jersey  on  the  ground  that  the  corporation  is  a  for- 
eign corporation,  and  that  unless  a  receiver  is  appointed  for 
the  equal  protection  and  benefit  of  all  creditors,  attachments 
will  be  issued  and  preferences  obtained  by  some  to  the  in- 
jury of  the  general  creditors  of  the  company,  and,  moreover,. 


ANCILLARY   PROCEEDINGS.  273 

certain  obligations  mature  in  connection  with  the  vari- 
ous mills  of  the  company,  which  can  not  now  be  paid, 
which  properties  are  necessary  to  the  operations  of  the  com- 
pany, and  which  properties  otherwise  would  be  lost. 

And  your  orator  further  alleges  on  information  and  belief, 

that  on  the day  of ,  in  the  year  1893,  a  certain  suit 

was  commenced  in  the  court  of  chancery  in  the  state  of  New 
Jersey,  a  court  of  record  and  having  jurisdiction  of  the  par- 
ties and  the  subject-matter,  and  at  the  domicile  of  the  cor- 
poration; that  in  said  suit  J.  W.  was  plaintiflf,  and  the  C.  D. 
Company,  defendant,  and  in  and  by  the  bill  of  complaint  in 
said  suit,  it  was  averred  that  the  said  corporation  was  insol- 
vent, and  it  was  prayed,  among  other  things,  that  a  receiver 
might  be  appointed  according  to  the  statutes  of  the  state  of 
New  Jersey  in  such  case  made  and  provided,  and  that  the 
said  corporation  shall  be  declared  insolvent,  and  that  said  re- 
ceiver so  to  be  appointed  should  thereupon  take  possession  of 
the  goods,  property  and  chattels  of  the  said  C.  D.  Company, 
and  proceed  to  realize  and  dispose  of  the  same,  and  that  said 
corporation  and  its  officers  should  be  restrained  from  col- 
lecting or  receiving  such  debts  or  from  assigning  or  transfer- 
ring the  property,  to  all  and  singular  the  allegations  in  which 
bill,  references  are  hereby  had,  as  if  the  same,  and  each  of 
the  allegations  were  incorporated  at  length  herein. 

That  thereupon  the  said  bill  was  duly  filed  as  aforesaid, 
and  application  in  due  form  to  the  chancellor  of  the  state  of 
New  Jersey,  having  jurisdiction  for  the  appointment  of  a 
receiver  or  receivers,  and  that  the  said  case  came  on,  and 
was  duly  heard  by  his  honor,  the  chancellor,  pursuant  to  the 
statutes  of  the  state  of  New  Jersey,  the  said  corporation  be- 
ing present  in  court,  and  requesting  such  appointment,  and 

such  proceedings  were  had  therein  that  on  the day  of 

,   1893,   it    was    duly    adjudged,    found,    decreed,  and 

ordered  by  the  said  court  of  chancery  of  the  state  of  New 
Jersey,  that  the  said  company  had  become  insolvent,  and 
that  an  injunction  be  issued  to  restrain  said  company  and 


274  RECEIVERS. 

its  oflBcers  from  exercising  any  privileges  and  franchises  and 
from  taking  or  dealing  with  the  assets  of  the  said  company, 
or  from  transferring  the  same,  except  to  the  receivers  here- 
inafter named,  and  that  S.  M.,  of  Jersey  City,  in  the  state  of 
New  Jersey  and  H.  C,  of  the  city,  county,  and  state  of  New 
York,  were  in  due  form  of  law  appointed  receivers  of  the 
said  C.  D.  Company,  with  full  power  and  authority  to  collect, 
receive,  or  to  take  unto  their  possession,  all  and  singular  the 
property,  real  and  personal,  belonging  to  said  company,  to 
dispose  of  the  same,  and  to  deal  therewith  as  in  such  order 
is  specifically  provided,  and  it  was  further  provided  therein 
that  the  said  receivers  should  give  a  bond  to  the  said  chan- 
cellor for  the  faithful  performance  of  their  several  duties, 
and  for  the  obedience  of  such  orders  as  he,  from   time  to 

time,  may  make,  in  the  sum  of dollars  ,duly  approved 

as  in  such  order  specified  by  a  special  master  of  the  said 
court. 

That  thereupon  the  said  S.  M.  and  H.  C,  duly  thereafter 
took  the  oath  of  office,  as  such  receivers,  as  is  prescribed  by 
the  statute,  and  each  duly  thereafter  executed  his  bond  as 
prescribed  in  such  order,  in  the  said  sum  therein  named,  which 
bond  was  thereafter  duly  approved  in  the  form  required  by 
such  order  and  duly  filed  as  required  by  law,  and  that  the 
said  receivers  entered  upon  the  performance  of  their  duty 
and  are  now  in  the  possession  of  the  assets  and  property  of 
the  said  C.  D.  Company,  and  the  said  order  of  the  court  of 
chancery  is  now  in  full  force  and  effect.  A  copy  of  all  the 
proceedings  in  the  said  suit  hereinabove  mentioned  is  at- 
tached hereto,  marked  "C,"  to  which  your  orators  refer,  as 
if  herein  specifically  stated  at  length. 

Your  orator  further  alleges  that  from  the  nature  of  the 
business  and  the  necessity  of  intelligent  mutual  co-operation 
in  the  several  states,  it  is  highly  desirable  that  the  same  re- 
ceiver, if  possible,  should  act  in  each  jurisdiction. 

Fifth.     Your  orator  further  alleges  that  on  the day 

of  ,  1893,  he  commenced   in   the  circuit  court  of  the 


ANCILI<ARY   PROCEEDINGS.  275 

United  States,  for  the district  of ,  a  court  of  record, 

and  having  jurisdiction  of  the  parties  and  the  subject-mat- 
ter, a  suit  wherein  the  C.  D.  Company  was  defendant,  and 
wherein  substantially  the  same  allegations  were  made  as 
were  made  in  the  New  Jersey  suit,  hereinbefore  referred  to, 
and  wherein  it  was  stated  that  such  suit  had  been  begun  in 
New  Jersey,  and  S.  M.  and  H.  C.  had  been  appointed  therein 
as  receivers,  and  prayed  that  the  same  receivers  might  be 
appointed  in  said  suit  in  the  circuit  court  of  the  United 

States  for  the district  of .     That,  thereafter,  on  the 

said day  of ,  an  order  was  made  by  the  Hon.  J.  S., 

circuit  judge,  appointing  said  S.  M.  and  H.  C.  receivers  of 
said  C.  D.  Company. 

A  copy  of  said  order  and  the  bill  of  complaint  in  said  suit, 
and  of  the  affidavits  and  exhibits  referred  to  in  said  order, 
which  exhibits  include  the  bill  of  complaint  in  the  suit  in 
New  Jersey,  and  an  order  appointing  receivers  in  said  suit, 
and  of  the  affidavit  used  therein,  is  attached  hereto  marked 
"A." 

Sixth.     Your  orator  further  shows  that  on  the day  of 

,  1894,  he  commenced  a  suit  in  the  circuit  court  of  the 

United  States  for  the district  of ,  against  the  C.  D. 

Company,  making  substantially  the  same  allegations  in  said 
bill  as  were  made  by  him  in  the  bill  filed  in  the  suit  in  the 

circuit  court  for  the  district  of ,  and  supporting 

said  allegations  by  substantially  the  same  affidavits,  and 
upon  said  bill  and  affidavits  the  Hon.  H.  L.,  circuit  judge, 
made  an  order  in  all  respects  similar  to  the  order  made  by 
the  Hon.  J.  S.,  above  referred  to,  and  in  said  order  appointed 
the  said  S.  M.  and  H.  C.  receivers. 

Your  orator  further  alleges  that  from  the  nature  of  the 
business  of  said  C.  D.  Company,  and  from  the  fact  that  the 
said  S.  M.  and  H.  C.  have  been  appointed  receivers  in  three 
courts,  and  the  necessity  of  intelligent  mutual  co-operation 
in  the  various  states  wherein  assets  of  said  company  are  sit- 
uated, it  is  highly  desirable  that  the  same  receivers,  if  pos- 
sible, should  act  in  all  the  jurisdictions. 


276  RECEIVERS. 

Seventh.  Inasmuch,  therefore,  as  your  orator  has  no  ade- 
quate remedy  at  law,  and  can  only  have  relief  in  equity,  he 
files  this  bill  of  complaint  on  behalf  of  himself  and  all  others 
similarly  situated,  and  prays  as  follows: 

I  St.  That  due  process  of  law  be  issued  against  the  de- 
fendant, the  C.  D.  Company,  and  that  it  be  summoned  to 
appear  in  this  court,  and  answer  this  bill  of  complaint,  but 
without  oath,  all  answers  under  oath  being  expressly  waived, 
and  to  stand  and  abide  by  such  orders  and  decrees  as  the 
court  from  time  to  time  may  adjudge. 

2nd.  That  the  court  will  administer  the  assets  of  the  de- 
fendant. 

3rd.  That  the  court  will  forthwith  confirm  the  appoint- 
ments heretofore  made  of  S.  M.  and  H.  C.  as  receivers  of  all 
and  singular  the  property  of  the  C.  D.  Company,  and  will 
appoint  receivers  of  the  property  and  assets  of  the  defendant, 
the  C.  D.  Company,  real  and  personal,  together  with  all  the 
equipment,  property,  material,  supplies,  and  other  assets  of 
every  description,  wherever  situated,  together  with  all  lease- 
holds, rights,  and  contracts,  with  authority  to  maintain  and 
carry  on  the  business  under  the  direction  of  the  court,  and 
that  the  said  C.  D.  Company,  its  officers,  agents,  and  em- 
ployees, be  forthwith  required  and  directed  to  deliver  up  to 
such  receivers  so  appointed  all  and  singular  each  and  every 
part  of  the  said  property  wherever  situated,  and  that  the 
officers,  directors,  managers,  and  agents  of  the  said  C.  D. 
Company,  and  each  of  them,  be  enjoined  from  interfering  in 
any  way  with  the  possession  and  control  of  the  said  receiv- 
ers, and  that  they  be  directed  forthwith  to  execute  proper 
transfer  and  assignments  to  such  receivers  so  appointed,  and 
all  and  singular  such  assets,  real  and  personal,  wherever  situ- 
ated. 

4th.  That  each  and  every  of  the  creditors  of  said  corpor- 
ation be  restrained  and  enjoined  from  interfering  with  the 
said  property  and  assets  of  the  company. 


ANCILI^ARY   PROCEEDINGS.  277 

5th.     That  the  plaintiflf  may  have  such  other  and  further 
relief  as  the  court  may  deem  proper  and  necessary. 

R.  X., 
Solicitor  for  Plaintiff. 
S.  X,, 
of  Counsel. 
[  Verification.     See  No.  85.] 


No.  317. 

Ancillary  Bill  for  Foreclosure  of  Railway. 
\Caption  as  in  No.  67.] 

ANCILLARY   BILL. 

Your  orator,  the  A.  B.  Trust  Company,  a  corporation  cre- 
ated by  and  existing  under  the  laws  of  the  state  of ,  and 

a  citizen  and  resident  of  said  state,  shows  unto  your  honors 
that  it  has  already  filed  in  the  circuit  court  of  the  United 
States  for  the district  of ,  the  court  having  jurisdic- 
tion of  the  C.  &  D.  Railway  Company,  a  bill  of  complaint 
against  said  C.  &  D.  Railway  Company,  a  corporation  having 

its  principal  office  in  the  state  of ,  and  a  citizen  and 

resident  of  said  state  of ,  and  against  the  M.  P.  Railway 

Company,  a  corporation  existing  under  the  laws  of  the  state 
of ,  and  citizen  of  said  state  of ,  seeking  for  the  fore- 
closure of  a  certain  indenture  of  mortgage  or  deed  of  trust, 

dated ,  known  as  the  general  consolidated  mortgage  of 

the  said  C.  &  D.  Railway  Company.  That  a  portion  of  the 
line  of  railway  and  property  owned  by  the  said  C.  &  D.  Rail- 
way Company,  and  subject  to  the  lien  of  said  general  con- 
solidated mortgage,  is  in  this  district  and  within  the  jurisdic- 
tion of  this  court. 

Your  orator  respectfully  refers  to  said  bill  of  complaint  for 
a  more  particular  statement  of  the  contents  thereof,  and  for 
the  terms  and  conditions  of  the  said  general  consolidated 
mortgage,  and  your  orator  files  herewith  a  true  copy  of  said 


278  RECEIVERS. 

bill  of  complaint,  and  prays  that  your  honors  will  take  the 
same  as  a  part  of  this  ancillary  bill ;  your  orator  further  shows 
that  all  the  statements  contained  in  said  bill  are  true,  as  it  is 
informed  and  verily  believes,  and  it  repeats  the  same  herein. 

And  your  orator  makes  the  same  persons  defendants  in 
this  case  that  are  named  in  said  bill  filed  as  aforesaid,  and 
prays  process  against  said  defendants  as  in  said  bill  they  have 
already  prayed. 

And  your  orator  prays  that  your  honors  will  make  such 
orders  and  decrees  preliminary  and  final  as  are  prayed  for  in 
said  bill  by  your  orator  in  the  circuit  court  of  the  United 

States  for  the district  of ,  and  that  your  honors  will 

also  make  all  such  other  and  necessary  orders,  judgments,  and 
decrees  as  may  be  required  in  aid  of  said  bill,  and  that  your 
honors  will  take  ancillary  jurisdiction  with  the  said  circuit 

court  of  the  United  States  for  the district  of ,  and 

will  give  your  orator  all  the  relief  which  may  be  necessary  to 
accomplish  the  purposes  of  filing  said  bill. 

And  your  orator  prays  in  all  respects  as  in  said  bill  set 
forth,  and  prays  such  other  and  further  relief  as  the  nature 
of  the  case  may  require  and  to  your  honors  seem  meet. 

X.  &  X., 

R.  X.,  Solicitors  for  Plaintiffs  in  said  Bill. 

F.L., 
of  Counsel. 


No.  318. 

Supplemental  Ancillary  Bill  for  Foreclosure  of   Railway. 

[Caption.'] 

Now  comes  the  A.  B.  Trust  Company,  plaintiff  in  the  above- 
entitled  and  numbered  cause,  and  brings,  with  the  leave  of 
the  court  first  had  and  obtained,  this,  its  supplementary  an- 
cillary bill    to  the  original  ancillary  bill  filed  by  it  in  this 

cause  on  the day  of ,  and  making  all  the  averments 

and  showing  unto  your  honors  the  same  facts  which  are  set 


ANCILLARY  PROCEEDINGS.  279 

forth  in  said  original  ancillary  bill,  further  shows  and  alleges: 

That  since  the  filing  of  said  original  ancillary  bill  the 

Hon.  J.  S.,  judge  of  the  circuit  court  of  the  United  States 

for  the district  of ,  in  the circuit,  to  wit,  on 

the day  of ,  made  his  certain  decree  in  the  case  of 

the  A.  B.  Trust  Company,  Trustee,  Plaintiff,  vs.  C.*&  D.  Rail- 
way Company  and  M.  P.  Company,  Defendants,  referred  to  and 
set  forth  in  said  original  ancillary  bill  filed  herein,  ordering, 
adjudging,  and  decreeing  that  S.  M.  and  H.  C.  be  appointed 
receivers  of  the  property  of  the  C.  &  D.  Railway  Company, 
covered  by  the  mortgages  made  by  the  said  defendant,  which 
are  sought  to  be  foreclosed  in  the  said  original  bill  of  the  A. 
B.  Trust  Company,  plaintiff,  with  power,  among  other  things, 
to  take  possession  of  all  the  said  mortgaged  property,  and  to 
operate,  and  cause  to  be  operated,  the  said  railroad  mortgaged 
as  aforesaid,  and  to  preserve  and  protect  all  of  the  said  mort- 
gaged property,  acting  in  all  things  under  the  order  of  the 

said  honorable  circuit  court  of  the  United  States  for  the 

district  of ,  or  of  such  other  courts  as  may  entertain 

jurisdiction  of  parts  of  the  said  mortgaged  property  as  ancil- 
lary to  the  jurisdiction  of  said  circuit  court  of ;    and 

with  leave  to  the  plaintiff  and  defendants,  and  each  of  them, 
to  apply  to  any  other  United  States  circuit  court  for  such 
order  or  orders  in  aid  of  the  primary  jurisdiction  vested  in 

said  circuit  court  of in  said  cause  as  may  have  ancillary 

jurisdiction  therein.  A  certified  copy  of  which  order  is 
attached  hereto,  and  made  a  part  hereof;  and  plaintiff  fur- 
ther shows  and  alleges  that  said  S.  M.  and  H.  C,  named  as 
receivers  aforesaid,  have  qualified  as  such,  in  the  manner  re- 
quired by  the  terms  of  said  decree  of  date, ,  and  on  the 

day  of ,  took  possession  of  the  said  property,  and 

are  now  operating  and  causing  to  be  operated  the  said  rail- 
roads, mortgaged  as  aforesaid,  including  such  property  and 

railroads  as  are  situated  within  the  state  of . 

The  plaintiff  now  renewing  its  prayer  made  in  said  ancil- 
lary bill  filed  on  the day  of ,  prays  that  your  honors 


28o  RECEIVERS. 

will  make  such  orders  and  decrees  preliminary  and  final  as 
are  prayed  for  in  said  bill  by  plaintiff  in  the  circuit  court  of 

the  United  States  for  the district  of ,  and  that  your 

honors  will  also  make  such  other  and  necessary  orders,  judg- 
ments, and  decrees  as  may  be  required  in  aid  of  said  bill, 
and  that  your  honors  will  take  ancillary  jurisdiction  with 
the  said  circuit  court  of  the  United  States  for  the dis- 
trict of ,  and  will  give  plaintiff  all  the  relief  which  may 

be  necessary  to  accomplish  the  purposes  of  filing  said  bill. 

And  plaintiff  prays  in  all  respects  as  in  said  bill  set  forth, 
and  prays  such  other  and  further  relief  as  the  nature  of  the 
case  may  require,  and  to  your  honors  seem  meet. 

X.  &  X., 
Solicitors  for  Plaintiff  in  said  Bill. 


No.  319. 

Decree  Taking  Ancillary  Jurisdiction. 

[Caption^ 

On  this day  of ,  came  on  to  be  heard  the  original 

and  supplemental  ancillary  bill  filed  by  plaintiff  in  this  cause, 
and  the  court  having  considered  the  same,  and  it  appearing 
to  the  court  that  the  A.  B.  Trust  Company,  trustee,  plaintiff 
herein,  has  already  filed  in  the  circuit  court  of  the  United 
States  for  the district  of ,  the  court  having  jurisdic- 
tion of  the  C.  &  D.  Railway  Company,  a  corporation  having 

its  principal  office  in  the  state  of ,  a  bill  of  complaint 

against  said  C.  &  D.  Railway  Company  ajid  against  the  M. 
P.  Railway  Company,  a  corporation  existing  under  the  laws 

of  the  state  of ,  and  of  said  state  of ,  asking  for  the 

foreclosure  of  a  certain  indenture  of  mortgage,  dated , 

known  as  the  general  consolidated  mortgage  of  the  said  C.  & 
D.  Railway  Company,  a  true  copy  of  which  bill  of  complaint 
is  now  on  file  in  this  cause.  And  it  further  appearing  that 
in  said  cause  now  pending  in  the  said  circuit  court  of  the 


ANCIIvLARY   PROCEEDINGS.  28l 

United  States  for  the district  of ,  the  Hon,  J.  S., 

United  States  circuit  judge  for  the circuit,  including 

said district  of ,  on  the day  of ,  made  his 

order   and    decree  sustaining    plaintiff's    application   for   a 

receiver,  and  afterwards,  to  wit,  on  the  day  of , 

made  his  further  order  and  decree,  naming  and  appointing  S. 
M.  and  H.  C.  receivers  of  the  property  of  the  C.  &  D.  Rail- 
way Company,  covered  by  the  mortgages  made  by  the  said 
company  which  are  sought  to  be  foreclosed  in  the  said  origi- 
nal bill  of  the  A.  B.  Trust  Company,  plaintiff,  with  certain 
powers  and  under  certain  instructions,  as  fully  appears  in 
said  order,  a  certified  copy  of  which  is  attached  to  the  plain- 
tiff's supplemental  ancillary  bill  filed  herein  ;  and 

It  further  appearing  that  a  portion  of  the  line  of  railway 
and  property  owned  by  the  said  C.  &  D.  Railway  Company, 
and  subject  to  the  lien  of  said  general  consolidated  mortgage, 
is  in  this  district  and  within  the  jurisdiction  of  this  court, 

and  that    by  the    terms   of  said    order   of  date  ,   said 

plaintiff  was  authorized  to  apply  to  any  other  United  States 
circuit  court  of  competent  jurisdiction  for  such  order  or  orders 
in  aid  of  the  primary  jurisdiction  vested  in  said  United  States 
circuit  court  for  the district  of as  may  take  ancil- 
lary jurisdiction  of  said  cause  ;  and 

It  further  appearing  that  the  said  S.  M.  and  H.  C.  have 
qualified  as  such  receivers  by  taking  and  subscribing  the 
oath  of  office  and  executing  and  filing  bond  in  the  manner 
and  according  to  the  terms  of  the  ninth  paragraph  of  said 
order  and  decree: 

Now,  the  court  being  fully  advised,  and  being  moved 
thereto  by  the  solicitors  of  the  plaintiff. 

It  is  ordered,  adjudged,  and  decreed  that  this  court  take 
ancillary  jurisdiction  with  the  circuit  court  of  the  United 

States  for  the district  of in  said  cause  now  pending 

in  said  court,  wherein  the  said  A.  B.  Trust  Company,  trustee, 
is  plaintiff,  and  the  said  C.  &  D.  Railway  Company  and  said 
M.  P.  Railway  Company  are  defendants. 


282  RECEIVERS. 

It  is  further  ordered,  adjudged,  and  decreed  that  the  said 
order  made  by  the  said  circuit  court  of  the  United  States  for 
the district  of ,  of  date ,  sustaining  the  appli- 
cation of  plaintiff  for  a  receiver,  and  also  the  said  order  and 

decree  of  said  court  made  on  the of ,  naming  and 

appointing  S.  M.  and  H.  C.  receivers  of  the  property  of  the 
C.  &  D.  Railway  Company,  covered  by  the  mortgages 
made  by  the  said  company,  which  are  sought  to  be  fore- 
closed in  the  original  bill  of  the  A.  B.  Trust  Company, 
with  certain  powers  and  under  certain  instructions,  be  and 
the  same  are  hereby  ratified,  approved,  and  confirmed,  and  the 
said  S.  M.  and  H.  C.  are  hereby  vested  with  the  same  powers, 
rights,  and  privileges  as  are  conferred  by  said  order  of  said 

circuit  court  of  the  United  States  for  the district  of , 

of  date ,  over  that  portion  of  the   line  of  railway  and 

property  owned  by  the  said  C.  &  D.  Railway  Company,  sub- 
ject to  the  lien  of  the  mortgages  made  by  said  company 
sought  to  be  foreclosed  as  aforesaid,  as  is  in  this  district  and 
within  the  jurisdiction  of  this  court.  And  the  said  receivers 
having  already  taken  and  subscribed  the  oath  of  office,  and 
executed  bond   in  the  manner  prescribed   by  the  order  and 

decree  of  said  circuit  court  of  the  United  States  for  the 

district  of ,  of  date ,  they  are  hereby  authorized  to  take 

possession  of  said  property  and  to  act  as  such  receivers  with- 
out taking  further  oath  of  office  or  executing  further  bond. 

It  is  further  ordered  and  decreed  that  the  plaintiff  cause 
to  be  filed  in  this  court  certified  copies  of  all  orders  of  a  gen- 
eral nature  in  any  way  affecting  the  said  property  situated 
within  the  jurisdiction  of  this  court  made  by  the  said  circuit 

court  of  the  United  States  for  the district  of in  said 

primary  cause  pending  in  said  court,  for  the  information  of 
the  court  and  all  persons  who  may  be  interested  in  said  cause. 

It  is  further  ordered  that  the  clerk  of  this  court  enter  on 
the  minutes  of  the  court  the  copy  of  the  said  order  of  the  said 

circuit  court  of  the  United  States  for  the district  of , 

of  date  ,  immediately  following  the  entry  of  this  order 

and  decree.  A.  P., 

Circuit  Judge. 


ANCILLARY    PROCEEDINGS.  283 

No.  320. 

Order  Appointing  Commissioner  to  Hear  and  Report 

Claims. 

It  having  been  represented  to  the  court  that  claims  are 
arising  in  against  the  receivers  appointed  and  con- 
firmed in  this  case,  growing  out  of  the  operations  of  the  rail- 
way property  in  for   stock   killed,  personal   injuries, 

damages  to  freight,  damages  for  short  delivery,  etc. ;  and  it 
appearing  to  the  court  that  such  claims  will  constantly  arise 
during  the  pendency  of  the  receivership  in  this  case,  and 
that  such  claims  should  be  adjudicated,  settled,  and  paid 
without  requiring  the  parties  interested  to  seek  relief  from 

the  circuit  court  of  the  United  States  in ,  having  original 

jurisdiction : 

It  is  therefore  ordered  by  the  court  that  E.  M.,  Esq.,  be 
and  he  is  hereby  appointed  special  master  commissioner  in 
chancery  for  this  cause ;  and 

It  is  further  ordered  that  all  claims  for  damages  of  every 
kind  that  may  arise  against  the  receivers,  growing  out  of 

their   operation  of  the  C.  &  D.  Railway  in  ,  may  be 

filed  and  presented  to  said  commissioner,  who  shall  examine 
and  report  thereon  in  due  course. 

That  the  special  master  is  directed  to  give  reasonable 
public  notice  of  this  order,  and  is  authorized  to  hold  sessions 
pending  examination  of  claims  at  such  points  as  he  may 
designate. 

He  shall  report  his  conclusions  to  the  court  from  time  to 
time,  and  such  reports  shall  stand  confirmed,  unless  ex- 
cepted to  within  thirty  days  from  the  filing  thereof,  upon 
proper  order  entered  according  to  the  rules  in  the  chancery 
order  book. 

Dated .  A.  P., 

Circuit  Judge. 


284  RECEIVERS. 

No.  321. 

Oath  of  Special  Master  Commissioner. 

[Caption.^ 

I,  E.  M.,  having  been  appointed  special  master  commis- 
sioner in  chancery  in  the  above-entitled  cause,  do  solemnly 
swear  that  I  will  faithfully  and  impartially  discharge  and 
perform  all  the  duties  incumbent  upon  me  as  such  special 
master  in  chancery,  according  to  the  best  of  my  skill  and 
ability,  agreeably  to  the  constitution  and  laws  of  the  United 
States;  so  help  me  God.  E.  M. 

Subscribed  and  sworn  to  before  me  this day  of , 

as  witness  my  hand  and  ofl&cial  seal  at . 

ISeal.']  C.  H., 

United  States  Commissioner District  of . 


No.  322. 
Order  to    File    Amendment  and  Extending  Receivership. 

[^Caption^ 

This  cause  came  on  to  be  heard  this day  of , 

upon  the  application  of  the  plaintiff  for  leave  to  file  its 
amendment  to  its  bill  of  complaint  filed  herein  heretofore  in 
this  cause : 

Whereupon,  the  court  being  fully  advised  thereof,  said  ap- 
plication is  hereby  granted,  and  the  clerk  of  the  court  is  di- 
rected to  file  the  same  as  of  the  date  of  this  order.  And 
upon  application  of  the  plaintiff  it  is  further 

Ordered  and  decreed  that  the  ;-eceivership  of  S.  M.  and  H. 
C,  appointed  under  a  decree  heretofore  made  in  this  cause, 
be  and  the  same  is  hereby  extended  to  and  over  all  the  rail- 
way and  property  of  the  defendants  [name  the  railways  un- 
der the  control  of  the  defendants  over  ivhich  the  receivership 
is  extended']]  and  that  the  said  S.  M.  and  H.  C.  be  and  they 
are  hereby  appointed  receivers  of  all  said  railways  and  the 
properties  thereof,  with  all  the  powers  and  authorities  men- 


ANCII^LARY    PROCEEDINGS.  285 

tioned  in  and  subject  to  all  the  terms  and  conditions  of  said 
decree  appointing  them  receivers  in  this  suit. 

And  the  said  receivers  are  hereby  authorized  to  defend  any 
action  pending,  or  which  may  be  brought,  seeking  to  estab- 
lish claims,  liens,  or  demands  against  the  C.  D.  Company  and 
the  above  named  railway  companies,  or  either  of  them,  or  the 
property  of  either  of  them,  and  to  prosecute  any  action  al- 
ready brought  against  any  corporation  or  person  for  the  re- 
covery of  any  moneys  or  property  due  said  railway  company 
or  either  of  them.  A.  P., 

Circuit  Judge. 

No.  323. 

Order  that  Receivers  Give  Notice  to  Stockholders  by 

Publication. 
{^Caption!] 

And  now,  this day  of ,  1893,  come  S.  M.  and  H. 

C,  receivers  of  the  property  of  the  C.  D.  Co.,  appointed  and 
confirmed  by  an  order  of  this  court  made  in  this  cause  on 
the day  of ,  1893,  ^^^  present  their  petition,  veri- 
fied the day  of ,  1893,  upon  consideration  whereof 

it  is  by  this  court  hereby 

Ordered  that  the  creditors  of  the  C.  D.  Co.  bring  in  and 
present  to  said  receivers,  in  writing,  their  several  claims  and 
demands,  and  make  proof  thereof  upon  oath  to  the  satisfac- 
tion of  the   said  receivers  on  or  before  the day  of , 

1893,  and  in  default  thereof  that  the  said  creditors  be  de- 
barred from  participating  in  any  dividend  or  distribution  of 
the  assets  of  said  corporation  which  may  be  made  by  the 
receivers. 

And  it  is  further  ordered  that  the  receivers  give  notice 
of  the  foregoing  order  by  causing  such  notice  to  be  published 
in  the  [name  o/pape?-] ,  a  daily  newspaper  published  in  the 

city  of ,  once  a  week  for  the  space  of  four  weeks,  the 

first  publication  to  be  made  within  ten  days  from  the  date 
of  this  order.  J-  S., 

Dated .  Circuit  Judge. 


286  RECEIVERS. 

No.  324. 

Notice  of  Petition  by  Receivers. 

\Caption^ 
Notice  to  A.  B.  Trust  Company  and  the  C.  &  D.  Railway 
Company,  or  their  Solicitors  of  Record  : 

You,  and  each  of  you,  are  hereby  notified  that  the  petition 
of  S.  M.  and  H.  C,  receivers  of  the  C.  &  D.  Railway,  a  copy 
of  which  is  hereto  attached  and  made  a  part  hereof,  will  be 
presented  in  the  above-entitled  cause  to  the  above-named 
court,  or  to  one  of  the  judges  thereof  in  chambers,  at  the 

city  of ,  on  the day  of ,  at  lo  o'clock  in  the 

forenoon  of  that  day,  or  so  soon  thereafter  as  the  said  court 
or  judge  may  hear  the  same,  and^that  said  receivers  will  ask 
the  order  of  the  court  thereon  at  that  time.  Z.  &  Z., 

Solicitors  for  S.  M.  and  H.  C,  Receivers  of  the  C.  &  D.  Ry. 


No.  325. 

Petition  for  Order  Limiting  Time  to  Present  Claims,  etc. 

\Caption^ 

The  petition  of  S.  M.  and  H.  C,  receivers  of  the  C.  D. 
Co.,  respectfully  shows  to  the  court : 

That  on  the day  of ,  1893,  ^Y  ^  certain  order  or 

decree  of  the  chancellor  of  the  state  of  New  Jersey,  upon  a 
bill  filed  by  J.  W.  against  the  C.  D.  Co.,  a  corporation  duly 
organized  and  existing  under  the  laws  of  the  said  state  of 
New  Jersey,  showing  that  said  corporation  was  insolvent,  and 
was  not  about  to  resume  its  business  in  a  short  time  there- 
after with  safety  to  the  public  and  advantage  to  the  stock- 
holders, your  petitioners  were  duly  appointed  receivers  of  the 
said  company,  with  power  to  receive  or  take  into  their  pos- 
session all  property  of  the  company  of  whatever  nature,  and 
with  other  powers  and  duties  in  said  order  set  forth,  and  that 
they  duly  qualified  and  gave  the  bond  required  by  said 
court  and  entered  into  the  possession  of  the  property  of  said 
corporation  as  such  receivers. 


ANCILLARY    PROCEEDINGS.  287 

That  on  the day  of ,  1893,  upon   a  bill   filed  in 

this  court  in  the  above-entitled  suit,  setting  forth  the  insol- 
vency of  said  corporation,  and  the  appointment  of  your  peti- 
tioners as  receivers  by  the  chancellor  of  New  Jersey,  as 
aforesaid,  your  petitioners  were  also  appointed  and  confirmed 
receivers  of  this  court,  of  all  and  singular  the  property  of 
said  company,  with  the  powers  and  duties  in  said  order  pre- 
scribed ;  and  your  petitioners  duly  qualified  as  such  receivers, 
as  in  said  order  directed,  and  entered  into  the  possession  of 
all  the  property  of  said  corporation,  and  have  since  been  and 
now  are  engaged  in  the  discharge  of  their  duties  as  such  re- 
ceivers, under  the  orders  and  decrees  aforesaid. 

Your  petitioners  show  that  they  have  been  appointed  and  con- 
firmed receivers  of  the  property  of  said  CD. Co. by  the  decrees 

of  the  circuit  courts  of  the  United  States  in  and  for  the 

district  of  [naming  all  of  the  courts  in  which  pro- 
ceedings have  been  had^^  all  of  the  foregoing  appointments 
being  ancillary  to  the  said  receivership  in  the  state  of  New 
Jersey,  the  domicile  of  the  said  corporation. 

Your   petitioners    further  show    that  on   the day  of 

,  1893,  an  order  was  made  by  the  chancellor  of  New 

Jersey,  directing  the  creditors  of  the  said  C.  D.  Co.  to  bring 
in  and  present  to  the  said  receivers,  in  writing,  their  several 
claims  and  demands,  and  to  make  proof  thereof  upon  oath 
to  the  satisfaction  of  the  said  receivers  within  three  months 
from  the  date  of  said  order,  and  to  cause  notice  of  such  order 
to  be  published  and  made  as  therein  provided,  such  publica- 
tion to  be  commenced  and  notices  mailed  within  ten  days 
from  the  entry  of  said  order,  as  by  said  order,  a  copy  of 
which  is  hereunto  annexed,  marked  "A,"  will  more  fully 
appear. 

That  by  a  further  order  of  the  said  chancellor,  made  the 
day  of ,  1893,  the  time  within  which  the  said  cred- 
itors of  said  corporation  should  bring  in  and  present  to  the 
said  receivers  their  several  claims  and  demands,  and  make 

proof  thereof,  as  provided  in  said  order  of  the day  of 

,   1893,  aforesaid,   was    extended    to    the    day    of 


288  RECEIVERS. 

,   1893,  and  the  publication  required  by  said  order  to  be 


made  was  directed  to  be  begun  within  ten  days  from  the  said 

day  of ,  1893,  and  it  was  directed  that  the  mailing 

of  notices  to  creditors  required  by  said  order  might  be  done 

at  any  time  before  the  expiration  of  said  month  of ,  as 

by  said  order  of  the day  of ,  1893,  a  copy  of  which 

is  hereto  annexed,  marked  "  B,"  will  more  fully  appear.  Pub- 
lication of  the  notices  to  present  claims  has  been  commenced 
by  your  petitioners,  pursuant  to  the  terms  of  said  order  of 

the day  of ,  1893,  ^  copy  of  said  notice  being  hereto 

annexed,  marked  "  C,"  and  copies  thereof  will  be  mailed  to 
all  the  creditors  of  said  corporation  known  to  your  petition- 
ers during  the  present  month,  as  in  said  order  directed. 

Your  petitioners  therefore  pray  that,  to  conform  the  pro- 
ceedings in  this  court  to  those  in  the  court  of  chancery  of 
New  Jersey,  this  court  will  make  an  order  in  terms  similar 
to  those  of  the  chancellor  of  New  Jersey  aforesaid,  limiting 
the  time  within  which  the  creditors  of  said  company  shall 
bring  in  and  present  their  several  claims  and  demands,  and 
directing  notice  of  such  order  to  be  published  in  such  news- 
paper as  this  court  may  direct,  and  that  in  default  of  presen- 
tation of  such  claims  pursuant  to  such  order  and  notice,  the 
said  creditors  be  debarred  from  participating  in  any  dividend 
or  distribution  of  assets  of  said  corporation  which  may  be 
made  by  the  receivers. 

And  your  petitioners  will  ever  pray,  etc.  S.  M., 

Y.  &  Y.,  H.  C, 

Solicitors  for  Receivers.  Receivers. 

\Attach  exhibits  "^,"  "^,"  and''C:''\ 


No.  326. 

Verification  of  Above  Petition. 


State  of 


County  of ,  ss. 

S.  M.  and  H.  C,  the  receivers  of  the  C.  D.  Co.,  and  as  such 
petitioners  in  the  foregoing  petition  named,  being  severally 


ANCILLARY    PROCEEDINGS.  289 

duly  sworn,  say   that  the  facts  set  forth    in  the    foregoing 
petition  by  them  subscribed  are  true. 

S.  M. 

H.  C. 
Subscribed  and  sworn  to  before  me  this day  of , 

1893-  J.  N., 

[Seal.]  Notary  Public. 

No.  327. 

Petition  of  Intervention. 

[Caption.] 
To  the  Honorable  Circuit  Court  of  the  United  States  for  the 

District  of : 

Your  petitioner,  B.  F.,  who  resides  in ,  in  the  county  of 

-,  in  the  state  of ,  praying  for  leave  to  intervene  in  the 


the  above-styled  and  numbered  cause,  and  for  other  orders, 
respectfully  represents  to  the  honorable  court  that  on,  to  wit, 
the day  of ,  1894,  prior  to  the  order  of  this  honora- 
ble court  placing  the  mortgaged  property  of  the  said  C.  &  D. 
Railway  Company  into  the  control  and  possession  of  the  re- 
ceivers, S.  M,  and  H.  C,  and  prior  to  the  order  of  the  hon- 
orable circuit  court  of  the  United  States  for  the  district  of 

placing  such  property  in  the  control  and  possession  of  said 
receivers,  the  intervenor  herein,  said  B.  F.,  instituted  suit  in 

the  justice's  court  for  precinct  No.  i,  in county, , 

against  the  T.  &  H.  Railroad  Company,  on  a  claim  of 

dollars  for  damages  for  material  taken  and  appropriated  by 
the  said  C.  &  D.  Railway  Company  in  the  construction  and 
building  of  its  said  railroad;  that  the  T.  &  H.  Railroad  Com- 
pany is  and  was  the  C.  &  D.  Railway  Company  construct- 
ing, operating,  owning,  and  controlling  under  the  said  name 
of  the  T.  &  H.  Railroad  Company,  a  line  of  railway  called 

the   T.    &    H.    Railroad,   and    running    from    T.,    in 

county,  ,  through    S,  in  county,  ,  and   into 

county, ,  on  in  the  direction  of  H.,  in county, 

,  together  with  a  tap  or  spur  running  from  said  town 


290  RECEIVERS. 

of  S,  in  said county,  to  the  town  of  L.,  in  the  county  of 

,  state  of .     That  during  the  pendency  of  said  suit 

in  said  justice  court  said  property,  known  as  aforesaid 
as  the  T.  &  H.  Railroad,  was  by  order  of  the  circuit  court 

of  the  United  States  for  the  district  of and  by  order  of 

this  honorable  court  made  in  this  cause,  placed  in  the  pos- 
session and  control  of  said  S.  M.  and  H.  C.  as  receivers  as 
aforesaid.  That  during  the  pendency  of  said  suit  in  said 
justice  court,  and  after  the  said  order  appointing  said  S.  M. 
and  H.  C.  as  receivers  as  aforesaid,  placing  said  T.  &  H. 
Railroad  in  their  possession,  in  this  cause  said  S.  M.  and  H. 
C,  receivers,  were  duly  served  with  citations  in  terms  of  law 
to  appear  and  answer  the  suit  of  the  said  B.  F.  in  said  jus- 
tice court,  and   thereafter,  to  wit,  on  the day  of , 

said  service  of  citation  on  said  receivers  being  perfect  and 
complete,  said  justice  court,  at  and  during  its  regular  term 
thereof,  gave  judgment  in  favor  of  the  said  B.  F.  for  the  sum 

of dollars,  and  for  costs  of  suit,  which  said  costs  amount 

to  the  sum  of dollars  against  the  said  T.  &  H.  Railroad 

Company  and  against  S.  M.  and  H.  C,  receivers;  and  said 
judgment  declares  and  establishes  said  sum,  together  with 
said  costs,  as  a  charge  and  lien  on  the  earnings  of  the  said  T. 
&  H.  Railroad  Company. 

And  this  intervenor  says  said  judgment  is  a  lien  of  the 
sixth  class  on  the  earnings  of  said  C.  &  D.  Railway,  and 
prays  an  order  of  this  honorable  court  conferring  the  same 
as  such  lien  and  for  the  payment  thereof  by  said  receivers. 

Your  petitioner  attaches  hereto,  marked  "Exhibit  A,"  a 
true  copy  of  said  judgment  of  said  justice  court,  certified  to 
as  being  true  and  correct  by  S.  H.,  said  justice  trying  said 
cause,  accompanied  by  the  certificate  of  W.  W.,  clerk  of  the 

county  court  of county,  ,  under  the  seal  of  said 

county  court,  that  said  S.  H.  is,  and  on  the day  of , 

was,  a  duly  elected  justice  of  the  peace,  and  that  the  signa- 
ture attached  to  said  copy  of  judgment  is  the  genuine  signa- 
ture of  said  justice  of  the  peace,  and  intervenor  asks  that 
the  same  be  taken  as  a  part  of  this  petition. 


ANCILI«ARY   PROCEEDINGS.  29I 

And  the  intervenor  prays  for  such  further  or  other  orders 
respecting  said  claim  as  may  seem  to  the  honorable  court 
equitable,  proper,  and  necessary  under  the  fact,  and  so  as 
in  duty  bound  will  ever  pray.  D.  H., 

Attorney  for  Intervenor,  B.  F. 

[Altach  Exhibit  "^."] 

No.  328. 

Certified    Proceedings    Before    Magistrate — "Exhibit  A." 

B.  F.  ^ 

vs.  \-  . 

T.  &  H.  Railroad  Company,  j 

On  this day  of ,  came  the  parties  plaintiflf  and 

defendant  by  their  attorneys  and  announced  themselves 
ready  for  trial,  and  came  a  jury  of  good  and  lawful  men  of 

county,  to  wit,  J.  W.,  and  five  others,  who,  after  being 

duly  impaneled  and  sworn  according  to  law,  after  hearing 
the  pleadings  and  evidence  in  the  cause  .(counsel  declining 
all  argument),  retired  to  consider  of  their  verdict,  and  re- 
turning  into  open  court   submitted   the   following   report: 

"We,  the  jury,  find    for  plaintifi"  ^ dollars,  amount  of 

damages  claimed.  (Signed)  J.  W.,  Foreman."  It  appear- 
ing to  the  court  that  the  defendant,  the  T.  &  H.  Railroad 
Company,  is  a  corporation  engaged  in  constructing  its  road 

and  operating  the  same  in county, ;  that  the  said 

company  is  justly  indebted  to  the  plaintiff,  B.  F.,  for  dam- 
ages sustained  by  him  from  the  appropriation  of  his. earth 
and    soil    by  said  railroad  company  in  the  construction  of 

the  road-bed  of  said  company  in county,  in  the  sum  of 

dollars,  as  found  by  the  jury;  that  since  the  institution 

of  this  suit  said  railroad  company  and  corporation  as  afore- 
said has  been  placed  in  the  hands  of  the  defendants,  S.  M. 
and  H.  C,  as  receivers ;  that  said  receivers,  acting  by  and 
through  their  agent,  C.  R.,  and  others,  have  possession  of  all 
the  property  of  said  corporation,  and  are  operating  said  rail- 
road and  business  in county, ,  and  are  receiving  all 


292  RECEIVERS. 

the  earnings  of  said  railroad  company;  that  said  S.  M.  and 
H.  C,  receivers  as  aforesaid,  have  been  duly  cited  to  answer 
the  demand  of  the  plaintiff  in  this  cause.  It  is  therefore 
ordered  and  adjudged  by  the  court  that  plaintiff,  B.  F.,  do 
have  and  recover  of  and  from  the  defendant,  the  T.  &  H. 
Railroad  Company,  and  S.  M.  and  H.  C,  receivers  as  afore- 
said, the  sum  of dollars  and  all  costs  of  this  suit ;  and 

a  lien  is  hereby  established  and  fixed  in  the  earnings  of  said 
defendant  corporation,  the  T.  &  H.  Railroad  Company, 
which  may  now  be  in  the  hands  of  said  receivers  afore- 
said, or  C.   R.,  agent  of  said  receivers,   in  county,  as 

aforesaid,  and  in  the  earnings  of  said  defendant  railroad  com- 
pany which  may  hereafter  come  into  the  hands  of  said  receiv- 
ers and  said  R.,  agent  of  said  receivers  as  aforesaid ;  and 
said  S.  M.  and  H.  C.  are  hereby  directed  out  of  the  earnings 
of  said  railroad  company  coming  to  their  hands  to  pay  off 
and  satisfy  the  judgment  herein  rendered  in  favor  of  said 
plaintiff,  B.  F.,  within  thirty  days  from  the  date  of  this  judg- 
ment. That  if  said  receivers  shall  fail  or  refuse  to  pay  off 
and  satisfy  said  judgment  herein  rendered  in  favor  of  plaintiff, 
B.F.,  within  the  time  as  herein  directed,  then  that  the  said  C. 

R.,  so  representing  said  receivers  in county  as  aforesaid,  is 

hereby  directed  to  pay  off  and  satisfy  said  judgment  within 
sixty  days  from  the  date  of  this  judgment  out  of  any  money 
coming  to  his  hands,  the  earnings  of  said  T.  &  H.  Rail- 
road Company.  Upon  failure  of  said  receivers  and  said  C.  R. 
to  pay  off  and  satisfy  the  judgment  herein  given  in  favor  of 
plaintiff,  B.  F.,  as  hereinbefore  directed,  then  let  execution 
issue  against  the  defendants,  the  T.  &  H.  Railroad  Company 
and  S.  M.  and  H.  C,  for  the  amount  unpaid  on  said  judgment. 

Done  this day  of .  S.  H., 

J.  P.  C.  Co. 


ANCILLARY  PROCEEDINGS.  293 

No.  329. 

Motion  to  Refer  Intervention  to  a  Special  Master. 

In  re  Intervention  of  B.  F. 

Now  comes  B.  F.,  intervenor,  by  counsel,  and  moves  the 
honorable  court  that  his  petition  of  intervention  filed  in  the 

papers  of  this  cause  on  the day  of ,  be  referred  in 

all  things  to  E.  M.,  Esq.,  master  in  chancery,  for  his  exami- 
nation and  report;  and  intervenor  with  respect  so  prays. 

D.  H., 
Attorney  for  B.  F. 


No.*330. 

Another  Petition  of  Intervention. 

\Caption?^ 
The   Petition  of  the  Safe  Deposit  Company  of  the  city  of 
,  State  of ,  Trustee: 

The  petition  of  the  Safe  Deposit  Company  respectfully 
shows : 

First.     Your  petitioner  is  a  corporation  duly  incorporated, 

organized,  and  existing  under  the  laws  of  the  state  of , 

and  has  been  such  since  long  prior  to  the  ist  day  of  June, 
18—. 

Second.  The  defendant,  the  E.  &  L.  River  Railroad  Com- 
pany, was  specially  chartered  by  an  act  of  the  legislature  of 
the  state  of  ,  entitled  "An  act  to  organize  and  incor- 
porate the  E.  &  L.  River  Railroad  Company,"  which  act  was 
duly  approved  on  the day  of . 

Third.  On  the  ist  day  of  June,  i8 — ,  the  said  E.  &  L. 
River  Railroad  Company  executed  its  mortgage  to  your  pe- 
titioner, as  trustee,  to  secure  certain  first-mortgage  bonds  as 
by  said  first  mortgage  provided.  A  copy  of  said  mortgage  is 
hereto  attached,  marked  "Exhibit  A,"  and  made  part  hereof. 
By  the  terms  of  said  mortgage  the  railroad  of  said  E.  &  L. 
River  Railroad  Company,  and  all  of  its  property  then  exist- 


294  RECEIVERS. 

ing  and  to  be  afterwards  acquired,  was  conveyed  to  your 
petitioner,  as  trustee,  to  secure  certain  mortgage  bonds  in 
said  mortgage  particularly  described.  The  number  of  bonds 
authorized  to  be  issued  under  said  mortgage  was  not  to  ex- 
ceed   ,  being  at  the  rate  of  $ per  mile  of  railroad 

constructed  at  the  time  of  the  execution  of  the  said  mortgage, 

and  a   further  issue  of  $ per   mile   as   additional   road 

should  be  constructed  in  sections  not  less  than miles. 

Fourth.     The  railroad  of  said  E.  &  L.  Railroad  Company 

is   constructed   from   ,  via   ,  to   ,  through  the 

counties  of  [name  all  the  counties  and  state^,  a  distance  of 

about miles.     From to is  a  standard  gauge, 

and  from to is  a  narrow  gauge. 

Fifth.     There  have  been  certified  and  delivered,  and  are 

now  outstanding,  of  the  bonds   secured  by    the    said 

mortgage,  but  the  rights  of  the  holder*  of thereof  to 

share  in  the  protection  of  the  lien  of  the  mortgage  is  dis- 
puted by  the  holders  of  the  remaining  bonds,  as  will 

more  fully  appear  by  reference  to  the  sixteenth  section  of 
this  petition. 

Sixth.     On  the day  of ,  the  said  E.  &  L.  River 

Railroad  Company  executed  and  delivered  to  the  C.  &  D. 
Railroad  Company  its  certain  deed  or  instrument  in  writing, 
whereby  it  conveyed  all  of  its  property  to  the  C.  &  D.  Railway  • 
Company,  defendant  herein.  The  said  conveyance  was  made 
by  virtue  of  authority  claimed  by  the  parties  thereto  to  be 
conferred  by  section  4  of  an  act  of  the  legislature  of  the  state 

of ,  approved  the day  of ,  entitled  "An  act  in 

relation  to  the  C.  &  D.  Railway  Company,  late  the  U.  P.  Rail- 
way Company,  Southern  Branch,"  and  also  by  virtue  of  the 
charter  powers  of  the  E.  &  L.  River  Railroad  Company. 

Seventh.  On  December  i,  18 — ,  the  said  E.  &  L.  River 
Railroad  Company  leased  all  of  its  lines  then  owned  and 
thereafter  to  be  acquired  to  the  M.  P.  Railway  Company. 

Eighth.  After  the  C.  &  D.  Railway  Company  acquired 
the  E.  &  L.  River  Railroad,  the  said  railway  company  turned 


ANCILLARY   PROCEEDINGS.  295 

over,  under  its  lease,  the  said  E.  &  L.  River  Railroad  to  the 
M.  P.  Railway  Company,  which  was  thereafter  operated  by 
the  said  last-named  company,  under  the  lease,  as  a  part  of 
the  C.  &  D.  Railway. 

Ninth.     On  the  day  of ,  a  suit  in  equity  was 

begun  in  the  circuit  court  of  the  United  States  for  the  district 

of by  The  A.  B.  Trust  Co.  of ,  trustee,  under  the 

mortgage  made  by  the  C.  &  D.  Railway  Company,  to  secure 
certain  bonds  therein  described,  to  foreclose  the  said  mort- 
gage, and  for  the  appointment  of  receivers  for  the  said  mort- 
gaged property,  default  having  been  made  in  the  payment  of 
interest  on  said  mortgage  bonds ;  in  which  suit  the  C.  &  D. 
Railway  Company  and  the  M.  P.  Railway  Company  were 
made  parties  defendant,  duly  served  and  appeared.  The  bill 
of  complaint,  and  of  subsequent  pleadings  and  proceedings 

in  the  said  United  States  circuit  court  for  the district  of 

have  been,  under  the  order  of  this  court  in  this  cause, 

filed  herein,  and  your  petitioner  begs  to  refer  thereto.    - 

Tenth.     On  the  day  of ,  in  the  said  cause,  an 

order  was  entered  appointing  S.  M.  and  H.  C.  receivers  of 
the  C.  &  D.  Railway  Company,  including  all  of  its  properties 
in  \name  the  states^  and  including  the  line  of  railroad  here- 
inbefore referred  to  as  the  E.  &  L.  River  Railroad. 

Eleventh.  On  the day  of the  ancillary  proceed- 
ings, in  which  this  petition  is  now  presented,  were  begun  by 
the  said  A.  B.  Trust  Company  in  the  circuit  court  of  the 
United  States  against  the  C.  &  D.  Railway  Company  and  the 
M.  P.  Railway  Company,  in  each  of  the  districts,  viz.,  the 
northern,  southern,  and  eastern,  of  the  state  of ,  to  fore- 
close the  said  mortgage  of  the  C.  &  D.  Railway  to  the  said 

A.  B.  Trust  Company,  and  in  aid  of  the  said  suit  in ,  and 

asking  for  the  appointment  of  receivers. 

Twelfth.     On  the day  of ,  an  order  was  made  in 

each  of  said  courts  in ,  appointing  and  confirming  the 

said  S.  M.  and  H.  C.  receivers  of  the  C.  &  D.  Railway  Com- 
pany, including  all  of  its  lines  in  the  state  of ,  among 

which  was  the  E.  &  L.  River  Railroad. 


296  RECEIVERS. 

Thirteenth.     Afterwards,    on    the   day  of  ,   an 

amended  bill  was  filed  in  the  original  suit  in  the  circuit  court 
of ,  making  certain  other  railroad  companies  parties  de- 
fendant, among  which  was  the  E.  &  L.  River  Railroad  Com- 
pany, and  an  order  was  made  on  that  day  extending  the 
receivership  of  the  said  S.  M.  and  H.  C,  specifically  and  by 

name,  over  certain  lines  of  road  in  ,  among  them  the 

E.  &  L.  River  Railroad. 

Fourteenth.     On  the day  of ,  an  amended  bill  was 

filed  in  each  of  the  said  circuit  courts  of  the  United  States 

for  ,  making   certain    other   parties  defendant,    among 

whom  was  the  E.  &  L.  River  Railroad  Company,  and  by  an 
order  entered  in  the  said  cause  the  receivership  of  the  said  S. 
M.  and  H.  C.  was  specifically  extended  over  certain  railroads 
in ,  and  among  them  was  the  said  E.  &  L.  River  Railroad. 

Fifteenth.  By  virtue  of  the  original  orders  appointing 
them,  the  said  receivers,  S.  M.  and  H.  C.  took  possession  of 
all  the  lines  of  the  C.  &  D.  Railway  Company,  including  the 

E.  &  L.  River  Railroad,  on  the day  of ,  and  have  since 

been  in  possession  of  and  operating  the  same,  and  they  are 
now  in  possession  of  and  operating  said  railroads  by  virtue  of 
the  said  original  orders  and  aforesaid  orders  made  upon  the 
said  amended  bills. 

Sixteenth.  That  there  were  prepared  for  issue  by  the  said 
E.  &  L.  River  Railroad  Company,  and  certified  by  your  peti- 
tioner, under   mortgage   dated  ,  \state  number^  bonds. 

Of  this  \state  number^  bonds  are  now  outstanding  injhands  of 
owners  whose  title  is  not  in  dispute,  and  they  allege  that  the 
remaining  \state  number^  of  said  bonds  were  acquired  by  the 
A.  B.  Trust  Company  of  New  York,  trustee,  under  the  mort- 
gage made  by  the  C.  &  D.  Railway  Company,  under  such 
conditions  that  the  said  A.  B.  Trust  Company  is  not  entitled, 
as  against  them,  to  enforce  the  same  as  if  entitled  to  the  pro- 
tection of  the  lien  of  the  mortgage  made  to  your  petitioner. 
A  copy  of  a  notice  received  from  the  holders  of  certain  of  the 
bonds  is  hereto  attached  as  ''Exhibit  B."     The  said  E.  &  L. 


ANCILLARY    PROCEEDINGS.  297 

River  Railroad  Company  has  made  default  in  the  payment 
of  the  coupons  which  fell  due,  and  upon  all  coupons  maturing 
subsequently  thereto. 

Seventeenth.  Your  petitioner  has  been  requested  by  the 
said  A.  B.  Trust  Company,  as  the  holder  of  \state  uumber] 
bonds,  and  also  by  the  holders  of  the  said  [state  number] 
bonds,  to  take  steps  to  protect  the  rights  of  the  owners  of  the 
bonds  secured  thereby,  so  that  the  holders  of  all  the  bonds 
now  outstanding  have  now  united  in  the  request  that  this 
action  be  taken. 

Eighteenth.  The  mortgage  of  the  said  E.  &  L.  River  Rail- 
road Company  to  your  petitioner  constitutes  a  prior  and  para- 
mount lien  upon  all  of  the  railroads  and  property  of  the  said 
E.  &  L.  River  Railroad  Company  to  any  claim  of  the  said  A.  B. 
Trust  Company  or  the  said  C.  &  D.  Railway  Company,  or  any 
of  the  other  parties  to  this  suit,  or  to  the  said  foreclosure  suit 

in  the  said  circuit  court  of  the  United  States  for  the 

district  of . 

Nineteenth.  Your  petitioner  further  shows  that  in  the  said 
mortgage,  made  and  executed  by  the  said  E.  &  L.  River  Rail- 
road Company  to  your  petitioner,  it  is  provided  as  follows : 

"In  case  of  default  of  the  payment  of  any  interest  upon 
said  bond,  and  such  default  continuing  twelve  months,  the 
whole  principal  sum  mentioned  in  each  and  all  of  said  bonds 
then  outstanding  shall,  at  the  option  of  the  holders  of  one- 
third  in  interest  of  the  said  bonds  then  outstanding,  become 
due  and  payable,  and  in  that  event,  or  in  case  of  default  in 
payment  of  the  principal  of  said  bonds,  or  any  of  them,  at 
the  maturity  of  said  bonds,  the  party  of  the  second  part  or 
its  successor  or  successors  in  this  trust  shall  foreclose  this 
mortgage  by  legal  proceedings,  and  sell,  or  cause  to  be  sold, 
the  said  railway  and  property,  and  all  the  rights,  privileges, 
and  franchises,  and  all  the  appurtenances  herein  conveyed,  as 
above  expressed,  including  lands  and  land  scrip,  as  well  as 
all  the  benefit  of  the  equity  of  redemption  of  the  party  of  the 
first  part  in  and  to  the  same,  with  the  benefit  of  the  franchise 


298  RECEIVERS. 

aforesaid,  which  sale  shall  be  at  public  auction  in  the  city  of 

New  York,  or  at ,  on  previous  notice  of  the  time  and 

place  of  such  sale  by  advertisement,  published  not  less  than 
three  times  per  week  for  ten  weeks,  in  at  least  two  newspa- 
pers of  general  circulation  published  in  the  city  of  New  York, 

two  in  the  city  of ,  and  two  in  the  state  of ,  and 

in  such  other  places  as  may  be  required  by  law." 

Wherefore,  your  petitioner  prays  permission  to  file  a  bill  to 
foreclose  the  said  mortgage  in  the  circuit  court  of  the  United 
States  for  the district  of ,  at ,  and  for  the  appoint- 
ment of  a  receiver  thereunder,  and  for  such  other  and  further 
order  in  the  premises  as  may  be  necessary  to  fully  protect  the 
rights  of  the  owners  of  the  bonds  secured  by  said  mortgage. 

R.  Z., 
Solicitor  for  the  Safe  Deposit  Co. 

[Attach  exhibits  ''A  "  and  "^."] 


No.  331. 

Order  Granting  Leave  to  Intervene. 
ORDER. 

And  now  this day  of ,  the  petition  of  the  Safe 

Deposit  Company  being  before  the  court,  upon  consider- 
ation thereof  and  upon  motion  of  R.  Z.,  solicitor  for  said  peti- 
tioner, and  W.  B.  appearing  for  the  E.  &  L.  River  Railroad 
Company,  and  R.  X.  appearing  for  the  C.  &  D.  Railway 
Company : 

It  is  ordered  that  the  prayer  of  the  petitioner  be  granted, 
and  that  the  said  petitioner  have  leave  to  file  a  bill  to  fore- 
close the  mortgage  referred  to  in  said  petition,  and  for  other 
relief  as  prayed  for  in  said  petition.  A.  P., 

Circuit  Judge. 


ANCILLARY   PROCEEDINGS.      '  299 

No.  332. 

Petition  of  Intervention  (in  re  Manufacturing   Company). 

[Caption^ 

Now  comes  the  W.  D.  Co.,  a  corporation  organized  under 
the  laws  of  the  state  of ,  and  represents  to  this  hon- 
orable court  that  the  said  defendant  and  its  receivers  have 
now  in  their  possession  and  control  large  quantities  of  [state 
the  goods^  as,  Manilla  and  New  Zealand  hemps  and  the  pro- 
ducts thereof,  or  as  may  be\,  the  property  of  this  company- 
received  from  it  by  defendant  for  the  sole  and  only  purpose 
of  being  manufactured  by  said  defendant  into  [binder  twine, 
or  as  may  be\  by  this  company  under  contract  in  that  behalf 

entered  into  on  the day  of ,  which  hemps  and  twine 

are  of  the  value  of thousand  dollars.     Said  property  is 

now  in  large  part  at  defendant's  mills  in and ,  in 

the  state  of ,  the  exact  amount  thereof  in  each  mill  this 

company  is  unable  to  say,  because  it  is  unable  to  get  the  re- 
quired information  from  said  company  or  its  receivers. 

There  is  great  and  imminent  danger  of  said  fibre  and  the 
twine  manufactured  therefrom  being  mixed  and  mingled  with 
other  fibres  and  twine  pertaining  to  said  company,  and  thus 
entailing  great  and  irreparable  loss  upon  this  company. 

The  company  avers  that  the  means  of  identification  are 
such  now  as  that — if  permitted  by  this  court — it  can  recover 
its  property  in  large  amount.  This  company  therefore  moves 
this  honorable  court  for  an  order  for  leave  to  bring  an  action, 
or  actions,  in  this  court  or  elsewhere,  against  said  receivers, 
to  enable  it  to  recover  its  said  property  and  prevent  the  im- 
minent and  impending  loss  aforesaid. 

It  further  moves  the  court  to  require  said  company  and  its 
said  receivers  to  make  an  immediate  statement  to  this  com- 
pany, showing  the  exact  whereabouts  of  all  its  said  fibre  and 
the  twine  manufactured  therefrom,  and  for  such  other  relief 
as  equity  and  justice  may  require.  X.  &  X., 

Attorneys  for  W.  D.  Co. 


300  '  RECEIVERS. 

No.  333. 

Motion  to  Restrain  Receivers  in  Accordance  with  the 

above  Petition. 
\Caption.'\ 

The  said  W.  D.  Co.  now  comes  and  moves  the  court  to  re- 
strain the  said  receivers  from  shipping  away  or  delivering  any 
binder  twine  in  their  possession  within  the  jurisdiction  of 
this  court  to  any  other  person  than  to  said  W.  D.  Co,  until 
the  question  can  be  tried  as  to  their  right  to  the  same  under 
the  contract  referred  to  in  their  said  bill  filed  herein  on  the 

day  of .  X.  &  X., 

Attorneys  for  W.  D.  Co. 


No.  334. 

Commissioner's   or  Master's  Report  on   Intervention. 

[^Caption.']. 
Special  Master's   Report  in  the  matter  of  the  claim  of  J.  D. 
Bros.  &  Co.  against  the  receivers  of  the  C.  &  D.  Railway 
Company : 
To  the  Judges  of  said  Court : 

Under  a  general  order  of  reference,  dated  ,  made  in 

this  cause,  providing  for  the  examination  by  the  special 
master  commissioner  of  claims  against  the  receivers  ap- 
pointed herein,  to  wit,  S.  M.  and  H.  C,  arising  from  their 
operation  of  the  defendant  railway  company's  property  in 


J.  D.  Bros.  &  Co.,  a  copartnership,  doing  a  general  mer- 
chandise  business  at ,  in  the  county  of ,  state  of 

,  filed  with  me  their  intervening  petition,  complaining 

that  on  the day  of ,  they  shipped  froni to , 


in  the  state  of ,  over  the  C.  &  D.  Railway, head 

of  beef  cattle ;   that  while  said  beef  cattle  were  en  route  to 

they  were   injured  and   delayed,  on   said   railway,  to 

intervenors'  damage  — ■ —  dollars. 


ANCILI,ARY    PROCEEDINGS.  3OI 

By  consent  of  the  parties  I  appointed  the day  of ^ 


at ,  to  consider  the  matter.     At  which   time   and  place 

appeared  W.  C,  solicitor  for  the  receivers,  and  W.  B.,  solici- 
tor for  interveners. 

After  hearing  the  evidence  and  argument  of  counsel,  I  took 
the  matter  under  advisement,  and  now  report  my  findings : 

I  find  that  the  receivers  and  intervenors  executed  on  the 

day  of ,  a  certain  live-stock  contract,  whereby  the 

former  engaged  to  transport,  as  common  carriers,  for  hire, 

head  of  beef  cattle,  the  property  of  intervenors,  form 

to  the  National  Stockyards  in  the  city  of . 

I  find  that  in   pursuance   of  this   contract head  of 

beef  steers  were  delivered  on  the  same  day  to  said  re- 
ceivers at ,  and  that  they  were  in  good  condition  and  of 

the  average  weight  of  eight  hundred  and  fifty  pounds  a  head. 

I  find  that  thereafter,  on  the day  of ,  while  a 

train  operated  by  said  receivers  was  transporting  said  cattle 

from to ,  it  was  detained  by  a  wreck  caused  by  a 

derailment  of  one  of  its  cars,  at ,  for  twenty-four  hours. 

I  find  that  said  cattle  were  delivered  on  the day  of 

,  to  the  consignee  at  the  National  Stockyards  in , 

in  bad  condition,  and  greatly  injured  by  the  wreck  and 
delay. 

I  find  that  the  delay  was  unreasonable,  and  not  without 
the  fault  of  the  receivers,  and  that  if  said  delay  had  not 
occurred  the  cattle  would  have  been  delivered  to  the  con- 
signee on  the day  of ,  and  in  good  condition,  and 

that  intervenors  would  have  received  a  better  price  for  them 
than  the  price  offered  and  received  by  intervenors  for  them 
on  the day  of ,  the  same  day  when  they  were  sold. 

I  find  that  the  difference  between  the  value  of  these  cattle 
at  a  fair  valuation  on  these  dates  amounts  to  the  sum  of 
dollars. 

Premises  considered,  I  am  of  the  opinion  that  intervenors 
are  entitled  to  recover  the  diff'erence  between  the  price  they 

would  have  received  on  the day  of ,  and  the  price 

actually  received  on  the day  of . 


302  RECEIVERS. 

I  therefore  recommend  the  adoption  by  the  court  of  a  de- 
cree to  the  following  effect: 

That  intervenors,  J.  D.  Bros.  &  Co.  have  of  and  from  S. 
M.  and  H.  C,  as  the  receivers  of  the  defendant  railway  com- 
pany, the  sum  of dollars,  actual  damages  ;  the  same  to 

be  decreed  as  a  charge  upon  the  current  income  of  the  re- 
ceivership, and  a  part  of  the  expenses  thereof,  and  all  costs 
in  this  behalf. 

Respectfully  submitted,  E.  M., 

Special  Master  Commissioner  in  Chancery. 


No.  335. 

Decree  Confirming  Master  Commissioner's  Report  on 

Intervention. 
[Capiion.'\ 

On  this day  of ,  came  on  to  be  heard  the  excep- 
tions of  intervenor  M.  D.  to  the  report  of  the  special  master 

filed  herein  on  the day  of ,  and  the  same  was  argued 

by  counsel,  where  upon  consideration  thereof,  because  it  is 
the  opinion  of  the  court  that  the  law  is  against  said  exceptions, 
it  is  therefore  ordered,  adjudged,  and  decreed  by  the  court 
that  said  exceptions  be,  and  they  are  hereby  overruled,  and 
the  report  of  said  special  master  is  in  all  things  confirmed. 

A.  P., 
Circuit  Judge. 


No.  336. 

Petition  of  Defendant  for  an  Order  Authorizing  Receivers 
to  Deliver  to  it  the  Possession  of  Railway  Property  in 
their  Hands. 

\^Captton.'\ 

The  petition  of  the  C.  &  D.  Railway  Company,  defendant 
herein,  respectfully  shows  to  this  court: 

First.  That  this  is  a  cause  ancillary  to  the  main  suit 
between  the  same  parties,  in  the  circuit  court  of  the  United 
States  for  the district  of . 


ANCILLARY   PROCEEDINGS.  303 

Second.  That  in  the  said  main  suit  the  C.  &  D.  Railway 
Company  has  heretofore  presented  its  petition  praying  for 
an  order  of  the  court  requiring  the  receivers  of  the  C.  &  D. 
Railway  to  turn  over  and  deliver  possession  of  the  said  rail- 
way and  property  to  the  said  C.  &  D.  Railway  Company ;  and 
that  prior  to  the  submission  of  the  petition  the  receivers  filed 
a  report,  and  that  upon  the  said  petition  and  report  the  court 
did,  upon  the  day  of  ,  enter  an  order  conform- 
ably to  the  prayer  of  the  said  petition,  and  that  copies  of  the 
said  petition,  and  of  the  said  report,  and  order  of  court  are 
hereto  annexed  and  marked  respectively  Exhibits  A,  B,  and 
C,  and  made  a  part  hereof. 

Wherefore  your  petitioner  prays  that  the  said  order  of  the 
court  may  be  spread  upon  the  records  in  this  court,  and  may 
be  by  this  court  confirmed  and  approved,  and  made  the  order 
of  this  court  in  this  ancillary  cause  so  far  as  the  same  may 
be  necessary  in  order  to  protect  all  the  rights  of  all  the  parties 
in  interest  as  against  the  property  within  the  jurisdiction  of 
this  court.  C.  &  D.  Railway  Co., 

Attest:  By  J.  W.,  3d  Vice-President. 

\Seal^        H.  B.,  Secretary. 

R.  X., 
R.  L., 
Solicitors  for  C.  &  D.  Ry.  Co. 

\Attach  exhibits  "^,»  "^  "  and  "  C"] 


No.  337. 

Ancillary  Decree. 

\Caption^ 

It  appearing  to  the  court,  by  certified  copy  herewith  filed, 
that  in  the  main  suit  between  the  same  parties  in  the  circuit 

court  of  the  United  States  for  the district  of  ,  to 

which  this  cause  is  ancillary,  there  was  duly  entered,  on  the 

day  of ,  the  following  decree  :     [Set  forth  decree  in 

full.-] 


304  RECEIVERS. 

It  is  hereby  ordered,  adjudged,  and  decreed  that  the  said 
decree  be  spread  upon  the  records  of  this  court,  and  that  the 
said  decree  be  and  hereby  is  approved  and  confirmed,  and 
made  the  decree  of  this  court  in  this  ancillary  cause  so  far  as 
the  same  may  be  necessary  to  protect  all  the  rights  of  all  the 
parties  in  interest  as  against  the  property  within  the  jurisdic- 
tion of  this  court.  A.  P., 

Dated .  Circuit  Judge. 

No.  338. 

Ancillary  Order,  Confirming  and  Directing  Sale  to  a 
Reorganized  Manufacturing  Company. 

\^Captwn.'\ 

On  reading  and  filing  the  report  of  S.  M.  and  H.  C,  re- 
ceivers of  the  property  and  assets  of  the  C.  D.  Co.,  duly  veri- 
fied on  the day  of ,   1893,  with  the  exhibits  as  in 

said  report  specified,  including  a  copy  of  all  the  papers  pre- 
sented to  the  chancellor  of  New  Jersey,  and  upon  which  an 

order  was  made  by  the  said  chancellor  on  the day  of 

,  1893,  and  duly  entered,  whereby  the  said  chancellor  at 

the  domicile  of  the  said  corporation  did  order,  adjudge,  and 
decree  that  the  sale  theretofore  made  by  S.  M.  and  H.  C, 
receivers  of  the  said  C.  D.  Co.,  of  the  assets  and  property  of 
said  corporation  to  G.  C,  E.  T.,  and  G.  H.  should  be  ratified, 
approved,  and  confirmed,  and  by  which  order  the  said  receiv- 
ers were  authorized  and  directed  to  carry  out  the  sale;  and 
whereas  it  appears  that  prior  to  the  making  of  said  order 
by  the  said  chancellor  of  New  Jersey  the  said  receivers  pre- 
sented their  report  to  him  bearing  the  date  of  the day 

of ,  1893,  reporting  the  bid  made  by  the  reorganization 

committee  for  the  property  and  assets  of  the  C.  D.  Co.,  or  for 
the  entire  property,  subject  to  existing  liens  and  obligations, 

the  sum  of dollars,  payable  upon  confirmation  of  sale^ 

dollars  in  cash,  and dollars  in  the  first  mortgage, 

six  per  cent,  gold  bonds  of  the  U.  C.  Co.,  being  a  new  cor- 


ANCILLARY   PROCEEDINGS.  305 

poration  formed  to  acquire  said  property  and  carry  out  the 
reorganization,  and  that  they  had  accepted  the  same  for  the 
reasons  set  forth  in  their  said  report,  subject  to  the  approval 
of  the  court,  and  that  thereupon  it  was  ordered  by  the  said 
chancellor  that  notice  should  be  given  to  each  and  every 
stockholder  and  creditor  by  delivering  or  mailing  to  him  a 
copy  of  the  order  to  show  cause  made  upon  such  petition, 

returnable  upon  the day  of ,  1893,  why  the  same 

should  not  be  granted,  and  that  each  and  every  of  the  said 
stockholders  and  creditors  had  an  opportunity  of  appearing 
and  of  being  heard  thereon,  and  that  upon  the  return  day 
thereof,  after  such  service  duly  made,  the  said  chancellor  did, 
after  hearing  all  parties,  make  the  order  aforesaid;  and 
whereas  it  appears  to  the  court  that  the  property  of  the  said 
C.  D.  Co.  has  been  sold  for  the  highest  price  that  could  be 
obtained  therefor,  and  that  it  is  for  the  interest  of  the  credi- 
tors and  stockholders  alike  that  said  sale  should  be  confirmed. 

Now,  therefore,  on  motion  of  Messrs.  X.  &  X.,  solicitors 
for  and  of  counsel  with  the  said  receivers,  on  hearing  Messrs. 
Z.  &  Z.,  counsel  for  the  receivers,  it  is  ordered  by  the  court 
that  the  sale  heretofore  made  by  S.  M.  and  H.  C,  receivers 
of  the  C.  D.  Co.,  to  G.  C,  E.  T.,  and  G.  H.,  be  and  the  same 
is  hereby  ratified,  approved,  and  confirmed,  and  the  said  re- 
ceivers are  hereby  authorized,  ordered,  and  directed  to  grant, 
bargain,  sell,  assign,  transfer,  convey,  set  over,  and  confirm 
unto  the  said  purchasers,  as  joint  tenants,  or  to  their  assigns, 
all  the  real  estate  and  personal  estate,  good  will,  choses  in 
action,  efiects  and  assets  of  the  said  defendant  corporation, 
the  C.  D.  Co.,  for  the  consideration  aforesaid,  and  upon  the 
terms  set  forth  in  the  bid  made  by  said  purchasers. 

And  the  said  receivers  are  hereby  authorized,  ordered,  and 
directed  to  execute  and  deliver  any  and  all  deeds,  bills  of 
sale,  conveyances,  assignments,  transfers,  and  other  instru- 
ments whatsoever  necessary,  proper,  or  advisable  for  the  vest- 
ing of  the  said  property  and  efiects  so  sold  in  the  said  trus- 
tees or  their  assigns. 


306  RECEIVERS. 

And  it,  is  further  ordered,  adjudged,  and  decreed  that  upon 
the  delivery  of  deeds  and  conveyances  by  the  said  receivers 
to  the  said  purchasers,  and  upon  payment  of  the  considera- 
tion agreed  upon  and  the  performance  of  the  conditions  of 
the  sale  by  said  purchasers,  that  all  the  right,  title,  and  in- 
terest of  the  C.  D.  Co.  of,  in,  and  to  all  real  estate,  personal 
property,  good  will  of  business,  choses  in  action,  stock,  or  other 
effects  or  property,  or  things  of  value  whatsoever,  shall  be 
and  become  fully  vested  in  the  said  purchasers  or  their  as- 
signs, fully  and  effectually  as  the  said  receivers  may,  can,  or 
ought  to  convey  the  same,  and  as  fully  and  effectually  as  this 
court  can  authorize  or  empower  them  to  convey  the  same. 

J.S., 

Dated .  Circuit  Judge. 


'  PATENTS  FOR  INVENTION. 


No.  339. 

Bill  in  Equity  for  Infringement  of  a  Patent  (i), 

[Caption^  as  in  No.  67.] 
To  the  Honorable,  the  Judges  of  the  Circuit  Court  of  the 
United  States  in  and  for  the District  of : 

A.  B.,  residing  at ,  in  the  state  of ,  and  citizen 

of  said  state,  brings  this,  his   bill  against  C.  D.,  of ,  in 

the  state  of ,  and  citizen  of  said  state,  and  inhabitant(2) 

of  the district  of ,  and  thereupon  your  orator  com- 
plains, and  says  : 

That  heretofore,  on  the day  of ,  1894,  A.  B.,  of 

,  was  the  true,  original,  and  first  inventor  of  a  certain 

new  and  useful  improvement  in ,  not  known  or  used  in 

this  country,  and  not  patented  or  described  in  any  printed 
publication  in  this  or  any  foreign  country  before  his  said  in- 
vention or  discovery  thereof,  and  not  in  public  use  or  on  sale 
for  more  than  two  years  prior  to  his  hereinafter  recited  appli- 
cation for  a  patent  therefor  (3) ; 

And  your  orator  further  shows  unto  your  honors  that  the 
said  A.  B.  being,  as  aforesaid,  the  inventor  of  the  said  im- 
provement, and  being  a  citizen  of  the  United  States,  made 
application  to  the  commissioner  of  patents  for  letters  patent, 
in  accordance  with  the  then  existing  acts  of  congress,  and 
having  duly  complied  in  all  respects  with  the  conditions  and 
requisitions  of  said  acts,  on  the day  of ,  1894,  let- 
ters patent  of  the  United  States,  signed,  sealed,  and  executed 
in  due  form  of  law,  for  the  said  invention  or  discovery,  were 

issued  to  him  and  numbered . 

307 


308  PATENTS. 

Whereby  there  was  secured  to  him,  his  heirs,  executors, 
administrators  or  assigns,  for  the  term  of  seventeen  years 

from  the day  of ,1894,  the  full  and  exclusive  right 

of  making,  using,  and  vending  to  others  to  be  used,  the  said 
improvement,  which  said  letters  patent  are  now  of  -record  in 
the  patent  office  of  the  United  States,  and  a  certified  copy 
of  which  is  ready  here  in  court  to  be  produced. 

And  your  orator  further  shows  unto  your  honors  that  by 
virtue  of  the  premises  he  became,  and  now  is,  the  sole  and 
exclusive  owner  of  said  letters  patent,  and  the  inventions  and 
improvements  described  therein,  and  of  all  the  rights  and 
privileges  granted  ^and  secured,  or  intended  to  be  granted 
and  secured  thereby.  And  that  since  he  became  the  owner 
thereof,  as  aforesaid,  he  has  invested  and  expended  large 
sums  of  money,  and  he  has  been  to  great  trouble  in  and 
about  said  invention,  and  for  the  purpose  of  carrying  on  the 
business  of  manufacturing  and  selling  machines  containing 
the  said  invention,  and  making  the  same  profitable  to  him- 
self and  useful  to  the  public ;  and  that  said  invention  has 
been  and  is  of  great  benefit  and  advantage  ;  and  that  a  large 
number  of  such  machines  were  made  according  to  said  in- 
vention, and  sold  by  your  orator  to  great  advantage  to  the 
public  ;  and  that  the  public  have  generally  acknowledged  and 
acquiesced  in  the  aforesaid  rights  of  your  orator  ;  and  your 
orator  believes  that  he  will  realize  and  receive  large  gains 
and  profits  therefrom  if  infringements  by  said  defendant  and 
his  confederates  shall  be  prevented. 

Yet  the  said  defendant,  well  knowing  the  premises  and  the 
rights  secured  to  your  orator,  as  aforesaid,  but  contriving  to 
injure  your  orator,  and  deprive  him  of  the  benefits  and  ad- 
vantages which  might  and  otherwise  would  accrue  unto  him 
from  said  invention,  after  the  issuing  of  the  letters  patent,  as 
aforesaid,  and  before  the  commencement  of  this  suit,  did,  as 
your  orator  is  informed  and  believes,  without  the  license  or 
allowance,  and  against  the  will  of  your  orator,  and  in  viola- 
tion of  his  rights,  and  in  infringement  of  the  aforesaid  letters 
patent,  within  the district  of ,  and  elsewhere  in  the 


BILLS   IN   EQUITY.  309 

United  States,  unlawfully  and  wrongfully,  and  in  defiance  of 
the  rights  of  your  orator,  make,  construct,  use,  and  vend  to 
others  to  be  used,  the  said  invention,  and  did  make,  con- 
struct, use,  and  vend  to  others  to  be  used, machines 

made  according  to,  and  employing  and  containing  said  in- 
vention, and  that  he  still  continues  so  to  do ;  and  that  he  is 

threatening  to  make  the   aforesaid machines  in  large 

quantities,  and  to  supply  the  market  therewith,  and  to  sell 
the  same. 

All  in  defiance  of  the  rights  acquired  by  and  secured  to 
your  orator  as  aforesaid,  and  to  his  great  and  irreparable  loss 
and  injury,  and  by  which  he  has  been  and  still  is  being  de- 
prived of  great  gains  and  profits,  which  he  might  and  other- 
wise would  have  obtained,  and  which  have  been  received 
and  enjoyed,  and  are  being  received  and  enjoyed,  by  the  said 
defendant  by  and  through  his  aforesaid  unlawful  acts  and 
doings. 

And  your  orator^  further  shows  unto  your  honors,  on  infor- 
mation and  belief,  that  said  defendant  has  sold  large  quan- 
tities of  said  machines,  and  has  a  large  quantity  on 

hand,  which  he  is  oSering  for  sale,  and  has  made  and  rea- 
lized large  profits  and  advantages  therefrom;  but  t-o  what 
extent,  and  how  much  exactly,  your  orator  does  not  know, 
and  prays  a  discovery  thereof.  And  your  orator  says  that 
the  use  of  the  said  invention  by  said  defendant,  and  his 
preparation  for  and  avowed  determination  to  continue  the 
same,  and  his  other  aforesaid  unlawful  acts,  in  disregard  and 
defiance  of  the  rights  of  your  orator,  have  the  effect  to  and 
do  encourage  and  induce  others  to  venture  to  infringe  said 
patent,  in  disregard  of  your  orator's  rights. 

And  your  orator  further  shows  unto  your  honors  that  he 
has  caused  notice  to  be  given  to  said  defendant  of  said,  ^in- 
fringements,  and  of  the  rights  of  your  orator  in  the  premises, 
and  requested  him  to  desist  and  refrain  therefrom;  but  he 
disregarded  said  notice,  and  refused  to  desist  from  said  in- 
fringements, and  still  continues  to  make  and  sell  said  pat- 
ented inachines. 


3IO  PATENTS. 

And  forasmuch  as  your  orator  can  have  no  adequate  relief 
except  in  this  court,  to  the  end  that  the  defendant  may  be 
compelled  to  account  for  and  pay  over  the  income  thus  un- 
lawfully derived  from  the  violation  of  the  rights  of  your 
orator,  as  above,  and  be  restrained  from  any  further  violation 
of  said  rights,  your  orator  prays  that  your  honors  may  grant 
a  writ  of  injunction,  restraining  -the  defendant  from  any  fur- 
ther construction,  or  sale,  or  use  in  any  manner  of  said  pat- 
ented machines,  or  any  part  thereof,  in  violation  of  the  rights 

of  your  orator,  as  aforesaid,  and  that  the machines  now 

in  possession  or  use  of  the  said  defendant  may  be  destroyed 
or  delivered  up  to  your  orator  for  that  purpose.  And  also,, 
that  your  honors,  upon  the  entering  of  a  decree  for  infringe- 
ment, as  above  prayed  for,  may  proceed  to  assess,  or  cause  to 
be  assessed  under  your  direction,  in  addition  to  the  profits  to 
be  accounted  for  by  the  defendant  as  aforesaid,  the  damages 
your  orator  has  sustained  by  reason  of  such  infringement, 
and  that  your  honors  may  increase  the  actual  damages  so 
assessed  to  a  sum  equal  to  three  times  the  amount  of  such 
assessment,  under  the  circumstances  of  the  willful  and  un- 
just infringement  by  said  defendant,  as  herein  set  forth. 
And  your  orator  prays  also  for  a  provisional  or  preliminary 
injunction,  and  for  such  other  relief  as  the  equity  of  the  case 
may  require,  and  as  to  your  honors  may  seem  meet. 

May  it  please  your  honors  to  grant  unto  your  orator  a  writ 
of  injunction  conformable  to  the  prayer  of  this  bill,  and  also 
a  writ  of  subpoena  of  the  United  States  of  America,  directed 
to  the  said  C.  D.,  and  commanding  him  to  appear  and  an- 
swer unto  this  bill  of  complaint,  and  to  abide  and  perform 
such  order  and  decree  in  the  premises  as  to  the  court  shall 
seem  meet,  and  be  required  by  the  principles  of  equity  and 
good  conscience.  A.  B. 

X.  &  X., 

Solicitors  for  Plaintiff  (4). 
R.  X., 

of  Counsel  (4). 

\yerification.     See  No.  85.] 


BILLS   IN   EQUITY.  3II 

(i)  The  plaintiff  may  seek  relief  at  law  fordamages ;  but  the  most 
common  method  is  by  bill  in  equity  for  discovery  and  injunction.  As 
to  jurisdiction  of  a  court  of  equity  in  patent 'cases,  see  Robinson  on 
Patents,  Sec.  1061  et  seg.,  and  cases  cited  in  notes.  The  circuit  courts 
have  original  jurisdiction  of  patent  suits  (R.  S.,  Sec.  629,  clause  9), 
irrespective  of  the  value  of  the  matter  in  dispute.  Foster's  Fed.  Prac, 
Sec.  15;  Miller-Mayee  Co.  vs.  Carpenter,  34  Fed.  Rep.,  433.  But  see 
U.  S.  vs.  Mooney,  116  U.  S.,  104,  107.  As  to  commencement  of  bill, 
see  20th  Rule  in  Equity;  and  as  to  necessary  allegations* in  bill,  see 
Robinson  oh  Patents,  Sec.  1106  et  seg.  See  also  Foster's  Fed.  Prac, 
Sec.  J  7. 

(2)  The  bill  must  allege  that  the  defendant  is  an  inhabitant  of  the 
district  within  which  the  suit  is  brought.  See  Robinson  on  Patents, 
Sec.  933,  note  2  ;  Desty's  Fed.  Proc,  Sec.  87;  Act  of  March  3,  1887,  as 
amended,  25  Stat,  at  L.,  433,  and  Foster's  Fed.  Prac,  Sec.  22. 

(3)  It  has  been  held  that  bill  was  demurrable  where  it  did  not 
allege  that  the  invention  was  not  in  public  use,  or  on  sale,  for  more 
than  two  years  prior  to  the  application.  See  R.  S.,  Sec,  4886 ;  Coop 
vs.  Institute,  47  Fed.  Rep.,  899 ;  Overman  Wheel  Co.  vs.  Elliott  Cycle 
Co.,  49  Fed.  Rep.,  859 ;  Hanlon  vs.  Primrose,  56  Fed.  Rep.,  600. 

(4)  Must  be  signed  by  counsel.  See  24th  Rule  in  Equity.  Dwight 
vs.  Humphreys,  3  McLean,  104,  and  Roach  vs.  Halings,  5  Cranch,  C.  C, 
637.     See  also  note  to  No.  67. 


The  following  allegations  should  be  inserted  in  the  bill  of 
complaint  \see  No,  339],  according  to  the  facts  : 

No.  340. 

Where    an    Assignment    of   the    Patent    has   been   made 
before  bringing  the  Suit(i). 

And  your  orator  further  shows  unto  your  honors  that  on 

or  about  the  day  of ,   1893,   the  said by  an 

assignment  in  writing,  and  on  that  day  sold,  assigned,  and 
transferred  unto  the  \_plaintiff'\  the  entire  right,  title,  and 
interest  in  and  to  said  letters  patent  and  invention,  together 
with  all  rights  of  recovery  for  past  infringements  arising 
under  said  letters  patent,  which  said  assignment  was  duly 
recorded  in  the  patent  office  of  the  United  States. 

(i)  If  more  than  one  assignment  of  the  patent  has  been  made,  it 
will  be  necessary  to  repeat  this  allegation  in  the  bill  until  the  chain  of 
title  is  complete. 


312  PATENTS. 

No.   341. 

Where  a  Reissued  Patent  is  Sued  On. 

And  your  orator  further  shows  to  your  honors  that  the 
[patentee]  has,  for  good  and  lawful  cause,  surrendered  said 
letters  patent  to  the  commissioner  of  patents,  and  having 
made  due  application  therefor,  and  having  in  all  things  com- 
plied with  the  acts  of  congress  in  such  case  made  and  pro- 
vided, they   were  canceled,  and  new  letters  patent,  which 

were  marked  "Reissue  No. ,"  were,  on  the day  of 

,  1894,  in  due  form  of  law,  issued  to  \J)atentee]^  which 

said  mentioned  reissued  letters  patent  are  of  record  in  the 
patent  office  of  the  United  States,  and  a  certified  copy  of 
which  are  ready  here  in  court  to  be  produced. 


No.  342. 

Where  the  Suit  is  brought  by  the  Administrator  of  a 

Patentee. 

And  your  orator  further  shows  unto  your  honors  that  the 

[patentee]  died  intestate  on  or  about  the day  of , 

1894,  and  that  his  son,  S.  B.,  was,  on  or  about  the day 

of ,  1894,  duly  appointed  and  qualified  as  administrator 

of  the  estate  of  the  said ,  deceased,  and  thus  became,  as 

such  administrator,  possessed  of  the  rights  granted  to  the 
said under  and  by  virtue  of  said  letters  patent. 


No.  343. 

An  Allegation  Setting  Forth  Prior  Adjudication. 

And  your  orator  further  shows  unto  your  honors  that  in 

the  month  of ,  1894,  S.  W.,  manufacturer  of ,  in  the 

city  of ,  state  of ,  was  manufacturing  and   selling 

,  embodying  the  invention  set  forth  in  and  in  infringement 

and  violation  of  the  rights  of  your  orator  under  the  said  let- 
ters patent  No. ;  that  on  the day  of ,  1894,  the 


BILLS   IN   EQUITY.  313 

said  A.  B.  brought  his  bill  in  equity  in  the  circuit  court  of 

the  United  States  for  the district  of ,  against  the 

said  S.  W.,  and  in  said  suit  complained  that  the  defendant 
had  infringed  and  threatened  the  further  infringement  of  the 

said  letters  patent  No.  .     [IVAen  the  fact  is  true^  add 

here.  And  that  he  thereupon  moved  the  court  for  a  prelim- 
inary injunction  therein  ;  that  the  said  motion  came  up  to  be 
heard  in  said  court  before  the  Hon.  J.  S.,  judge  of  the  circuit 

court,  on  the day  of ,  1894,  on  affidavits  and  proofs 

filed  by  the  respective  parties,  and  was  argued  by  counsel, 
to  wit :  \here  name  the  counsel  for  the  respective  parties^ ,  and 
that  upon  consideration  of  said  proofs  and  arguments  the 

court,  on  the day  of 1894,  ordered  an  injunction  as 

prayed  for,  restraining  the  defendant  from  infringing  the  said 
letters  patent  No. ,  and  the  said  injunction  was  accord- 
ingly granted  and  issued]  ;  that  the  said  defendant  filed  his 
answer  to  the  said  bill  of  complaint,  and  the  said  cause  came 
on  to  be  heard  on  pleadings  and  proofs,  and  was  argued  on 

the day  of ,  1894,  before  the  Hon.  J.  S.,  judge  of 

the  circuit  court,  by  counsel  for  the  respective  parties,  viz. : 

\name  theni]^  and  on  the day  of ,  1894,  the  court 

ordered   a   decree   for   the   plaintiff,  affirming   the   validity 

of  the  said  letters  patent  No. ,  and  a  perpetual  injunction 

as  prayed  for,  restraining  the  defendant  from  infringing  said 
letters  patent,  and  said  perpetual  injunction  was  accordingly 
granted  and  issued. 


No.  344. 

A  Bill  in  the  Nature  of  a  Supplemental  Bill.     Allegation 
when  Patent  has  been  Assigned  pending  Suit  (i). 

And  your  orator  further  shows  unto  your  honors  that  the 
said  A.  B.,  being  vested  with  the  title  as  aforesaid,  and  being 
advised  that  the  said  C.  D.  had  infringed  and  was  continuing 
to  infringe  upon  said  letters  patent  in  this  district  hereto- 
fore, to  wit:  on  or  about  the day  of ,  1894,  filed  his 


314  PATENTS. 

bill  in  equity  in  this  court  against   the  said  C.  D.  (being  bill 

in  equity  No. ),  wherein  he  shows  the  premises  set  forth 

herein,  and  charged  such  infringement  of  said  letters  patent 
by  said  defendant  and  of  the  rights  therein  vested  in  the  said 
A.  B.,  and  prayed  an  injunction,  and  an  accounting,  and  other 
suitable  relief  in  respect  thereto,  as  are  more  fully  set  forth 
in  the  bill  of  complaint  in  said  cause  now  on  file. 

And   your   orator   further  shows  unto  your  honors  that 

pending  the  said  suit,  viz. :  that  on  or  about  the day  of 

,  1894,  the  said  A.  B.  transferred  his  entire  right,  title, 

and  interest  in  and  to  the  said  letters  patent  No. ,  and 

in  and  to  all  rights  of  action  and  recovery  for  past  infringe- 
ments thereof  to  your  orator,  S.  T.  (2),  and  a  copy  of  which 
said  assignment  was  duly  recorded  in  the  patent  office  of  the 
United  States ;  and  that  your  orator  now  holds  the  entire 
title  thereto,  and  to  all  rights  of  action  for  past  infringe- 
ment, as  well  as  for  the  future  infringement  arising  there- 
under, for  his  own  use  and  behoof,  and  for  the  use  and 
behoof  of  his  legal  representatives,  to  the  full  end  of  the  , 
term  for  which  said  letters  patent  are  or  may  be  granted,  as 
fully  and  entirely  as  the  same  would  have  been  held  and 
enjoyed  by  the  said  A.  B.  had  this  assignment  not  been 
made. 

(i)  As  to  when  such  bill  is  proper,  and  the  necessary  allegations, 
etc.,  see  Robinson  on  Patents,  Sec.  1122  ;  Beach's  Modern  Equity  Prac, 
Sec.  512;  57th  Rule  in  Equity;  Desty's  Fed.  Proc,  Sec.  1172;, 
Foster's  Fed.  Prac,  Sec.  191,  ei  seq. 

(2)  S.  T.  becomes  the  plaintiff  in  the  supplemental  bill,  in  place  of 
A.  B.,  the  plaintiff  in  the  original  bill. 


No.   345. 

Bill  to  Cancel  an  Interfering  Patent  (i). 

[Proceed  as  in  No.  339  to  the  end  of  paragraph  four^  and 
continue  as  follows .-] 

And  your  orator  further  shows  unto  your  honors  that  he  is 
the  sole  and  exclusive  owner  of  the  said  and  heretofore  re- 


BILLS   IN    EQUITY.  315 

cited  letters  patent,  and  the  inventions  and  improvements  de- 
scribed therein,  and  of  all  the  rights  and  privileges  granted 
and  secured  or  intended  to  be  granted  and  secured  thereby. 

And  your  orator  further  shows  unto  your  honors  that  sub- 
sequently to  the  issue  of  his  said  letters  patent  aforesaid,  to 

wit:    On  or  about  the day  of ',  1893,  defendant,  C. 

D.,  wrongfully  made  application  in  the  patent  office  of  the 
United  States  for  letters  patent  for  the  improvement  in  ten- 
sion devices  for  fence  machines  invented  and  patented  by 
your  orator,  as  aforesaid,   and   that  upon    proceedings  had 

upon  the  application  of  C.  D.,  letters  patent  No. ,  dated 

,  were  procured  to  issue  from  the  said  patent  office,  pur- 
porting to  grant  to  the  said  C.  D.,  his  successors  or  assigns,  for 

the  full  term  of  seventeen  years  from  the  said ,  the  full 

and  exclusive  right  to  make,  use,  and  vend  the  aforesaid  ten- 
sion device  for  fence  machines,  being  in  fact  the  invention  of 
your  orator,  and  the  same  invention  which  was  described  and 

claimed  in  his  aforesaid  letters  patent  No. ,  as  will  more 

fully  appear  from  a  comparison  of  the  said  letters  patent  No» 

,  granted  your  orator  on ,  and  the  said  letters  patent 

No. ,  granted  said  C.  D.,  on ,  a  duly  certified  copy 

of  which  is  ready  here  in  court  to  be  produced. 

S^If  it  be  true^  say  f\  And  your  orator  further  shows  unto- 
your  honors,  upon  information  and  belief,  that  said  applica- 
tion of  defendant,  C.  D.,  was  filed  at  the  instance  of  the  R. 
C.  Co.,  one  of  the  defendants  herein;  that  the  proceed- 
ings resulting  in  the  grant  of  said  C.  D.  patent  No.  , 

were  conducted  by  and  at  the  expense  of  the  said  R.  C.  Co.^ 
and  that  the  said  R.  C.  Co.  claims  some  interest  therein  and 
thereunder. 

And  your  orator  further  shows  unto  your  honors  that  both 
prior  to  and  subsequently  to  the  g^ant  of  his  letters  patent 
aforesaid  he  has  invested  and  expended  large  sums  of  money 
and  has  been  to  great  trouble  in  and  about  said  invention, 
for  the  purpose  of  carrying  on  the  business  of  manufactur- 
ing tension  devices  for  fence  machines,  and  making  the  same 


3l6  PATENTS. 

profitable  to  himself  and  useful  to  the  public,  and  that  the 
said  invention  has  been  and  is  of  great  benefit  and  advan- 
tage, and  that  a  large  number  of  tension  devices  for  fence 
machines  has  been  made  according  to  said  invention  and 
sold  by  your  orator  to  great  advantage  to  the  public. 

And  your  orator  further  shows  unto  your  honors  that  the 
defendants  are  asserting  title  under  said  letters  patent  No. 

,  granted  defendant,  C.  D.,  as  aforesaid,  and  are  claiming 

thereunder  the  exclusive  rights  granted  and  secured  to  your 
orator  by  said  letters  patent  No. ;  that  the  said  defend- 
ants thereby  have  been  and  are  inflicting  great  damage  and 
injury  on  your  orator,  and  will,  if  said  wrongful  acts  shall  not 
be  enjoined  and  restrained  by  your  honors,  greatly  and  irrep- 
arably damage  your  orator. 

And  forasmuch  as  your  orator  can  have  no  adequate  relief 
except  in  this  court,  to  the  end  that  the  said  interfering  let- 
ters patent  granted  C.  D ,  as  aforesaid,  may  be  decreed  by 
this  court  to  be  invalid,  inoperative,  and  void,  and  may  be 
ordered  to  be  canceled,  annulled,  and  set  aside,  and  that  the 
said  C.  D.  (and  the  R.  C.  Co.)  may  be  required  to  answer  and 
disclose  on  oath  the  names  of  all  persons  whomsoever  inter- 
ested in  said  letters  patent,  or  in  the  working  of  the  said  in- 
vention claimed  under  the  same  (or  connected  with  the  said 
R.  C.  Co.),  in  the  said  violation  of  your  orator's  rights,  in 
order  that  said  persons  may  be  made  parties  to  this  proceed- 
ing, and  that  the  said  C.  D.  (and  the  R.  C.  Co.,  its  officers), 
associates,  agents,  and  employees  may  be  enjoined  and  re- 
strained both  provisionally  and  perpetually  from  asserting 
any  right  under  the  said  letters  patent  granted  C.  D.  as  afore- 
said, or  in  or  under  the  invention  purporting  to  be  secured 
thereby,  your  orator  prays  for  a  provisional  or  preliminary  in- 
junction herein,  and  that  the  said  defendants  be  required  to 
appear  and  answer  hereto,  and  for  such  other  and  further  re- 
lief as  the  equity  of  the  case  may  require,  and  as  to  your 
honors  may  seem  meet.  May  it  please  your  honors  to  grant 
unto    your    orator   a    writ    of    injunction,    conformable   to 


BILLS   IN    EQUITY.  317 

the  prayer  of  this  bill,  and  also  a  writ  of  subpoena  of  the 
United  States  of  America,  directed  to  the  said  C.  D.  (and  the 
R.  C.  Co.),  and  commanding  him  [them],  (and  the  officers  of 
the  R.  C.  Co.)  to  abide  and  perform  such  order  and  decree  as 
to  the  court  may  seem  meet,  and  be  required  by  the  princi- 
ples of  equity  and  good  conscience.  X.  &  X., 

Solicitors  for  Plaintiffs. 
[  Verification.^ 

(i)  R.  S.  Sec.  4918. 


No.  346. 

Bill  to  Compel  Issue  of  Patent  (i). 

[Caption  as  in  No.  67.] 

A.  B.,  of  the  city  of ,  in  the  state  of ,  and  a  citizen 

of  said  state,  brings  this  bill  against  C.  D.,  of  the  city  of , 

in  the  state  of ,  and  a  citizen  of  said  state,  and  an  inhab- 
itant of  the  district  aforesaid. 

And  thereupon  your  orator  complains  and  says  that  hereto- 
fore, and  before  the  day  of ,  1894,  but  not  more 

than  two  years  before  said  date,  the  said  A.  B.,  being  a  citizen 
of  the  United  States,  was  the  true,  original,  and  first  inventor 

of  certain  new  and  useful  improvements  in machines, 

not  known  or  used  before  said  invention,  and  not  at  the  time 
of  his  application  for  patent  therefor,  as  hereinafter  set  forth, 
in  public  use  or  on  sale  for  more  than  two  years,  which  in- 
vention comprised,  among  other  things,  generally  \here  set 
forth  the  invention  in  general  terms ^  and  continue  as  follow s\ 

That  the  said  invention  was  more  fully  and  specifically 
embraced  in  the  several  claims  of  the  application  for  a  patent 
filed  in  the  patent  office  of  the  United  States  by  A.  B.,  in- 
cluding those  hereinafter  recited. 

That  on  or  about  the day  of  ,  1894,  the  said  A. ' 

B.,  being  the  inventor  as  aforesaid,  and  a  citizen  of  the  United 
States,  made  application  to  the  commissioner  of  patents  for 
letters  patent  of  the  United  States  for  so  much  of  the  afore- 


3l8  PATENTS. 

said  invention  as  is  embraced  in,  among  others,  the  claims 
thereof,  more  particularly  hereinafter  mentioned,  said  applica- 
tion being  made  in  accordance  with  the  then  existing  acts  of 
congress,  and  said  applicant  duly  complying  in  all  respects 
with  all  the  requirements  of  the  law  in  such  case  made  and 
provided,  and  the  said  application  included  among  others  the 
following  claims,  as  will  more  fully  appear  by  a  duly  authenti- 
cated copy  thereof,  ready  here  in  court  to  be  produced, 
to  wit:  [here  set  forth  in  full  applicanV  s  claims  in  controversy]. 

That  the  said  A.  B.,  having,  prior  to  the  aforesaid  applica- 
tion, exhibited  said  invention  to  C.  D.,  of  the  city  of ,  in 

the  state   of ,  and  said  C.  D.,  seeking  surreptitiously  to 

appropriate  the  aforesaid  invention,  or  so  much  thereof  as  is 
embraced  in  the  claims  hereinbefore  recited,  unjustly  and 
unlawfully  filed  in  the  patent  office  of  the  United  States  an 
application  therefor,  wherein  he  falsely  alleged  himself  to 
be  the  inventor  thereof,  which  said  application  was  filed  on 
or  about  the day  of ,  1894. 

That  the  said  application  contained  claims  covering  the 
aforesaid  invention  of  A-  B.  in  the  hereinbefore  recited 
claims  of  his  application,  as  will  more  fully  appear  from  the 
patent  issued  thereupon  hereinafter  particularly  mentioned, 
and  a  duly  authenticated  copy  is  ready  here  in  court  to  be 
produced. 

That  thereupon  the  commissioner  of  'patents  withheld  the 
allowance  of  the  aforesaid  claims,  and  declared  an  interfer- 
ence between  the  said  A.  B.'s  application  and  the  said  C.  D.'s 
application,  including  in  said  interference  the  subject-matter 
hereinbefore  stated,  and  more  particularly  embraced  in  the 
several  aforesaid  claims  of  said  A.  B.'s  application. 

That  the  said  A.  B.  duly  prosecuted  his  aforesaid  applica- 
tion and  claims,  furnishing  proofs  establishing  the  above- 
mentioned  facts,  and  complying  in  all  respects  with  the  pro- 
visions of  the  law. 

That  upon  the  hearing  of  the  said  interference  before  the 
examiner  of  interferences,  the  issues  were,  as  your  orator 


BILLS   IN    EQUITY.  319 

submits,  erroneously  found  by  the  said  examiner  in  favor  of 
the  said  C.  D. 

That  thereupon  an  appeal  was  taken  by  the  said  A.  B.  to 
the  appeal  board,  otherwise  known  as  the  board  of  exam- 
iners-in-chief, the  said  board  having  heard  the  same,  reversed 
the  decision  of  the  examiners  of  interference,  and  awarded 
priority  to  the  said  A.  B. 

That  thereupon  an  appeal  was  taken  to  the  commissioner 
of  patents  of  the  United  States  in  person,  who,  as  your  orator 
submits,  erroneously,  and  contrary  to  law  and  the  evidence, 
reversed  the  decision  of  the  appeal  board  and  awarded 
priority  to  the  said  C.  D.,  whereupon  a  patent  embracing  the 
aforesaid  subject  of  interference  was  issued  to  the  said  defend- 
ant, C.  D.,  under  the  date  of ,  1894,    No. ,  and  the 

claims  in  the  said  application  of  the  said  A.  B.,  above  set  forth, 
were  finally  rejected  by  the  patent  office  of  the  United  States, 
as  will  more  fully  appear  by  duly  authenticated  copies  of  said 

application  and  of  said  letters  patent  No. ,  and  of  said 

proceedings  in  the  patent  office  of  the  United  States,  ready 
here  in  court  to  be  produced. 

That  the  commissioner  of  patents  has  refused  and  still 
refuses  to  grant  letters  patent  upon  the  aforesaid  A.  B.'s  appli- 
cation for  the  invention  embraced  in  the  above-recited  claims, 
though  your  orator  is  lawfully  entitled  thereto,  and  is  the  sole 
owner  of  all  right,  title,  and  interest  in  and  to  his  said  inven- 
tion, and  in  and  under  his  said  application. 

And  forasmuch  as  your  orator  can  have  no  adequate 
relief  except  in  this  court,  he  brings  this  bill  under  and  in 
accordance  with  the  provisions  of  the  statute  in  this  case 
made  and  provided,  and  prays  your  honors  to  adjudge  and 
decree  that  A.  B.  is  entitled  to  receive  letters  patent  of  the 
United  States  for  his  aforesaid  invention,  as  specified  in  the 
before-recited  claims  of  his  said  application. 

That  your  honors  may  adjudge  the  said  A.  B.  to  be  the 
first  true  and  original  inventor  of  the  said  improvements  in 
machines,  set  forth  in  and  forming  the  issues  of  inter- 


320  PATENTS. 

ference  hereinbefore  mentioned  in  the  claims  rejected  in  the 
before-mentioned  application  of  A.  B.,  and  decree  that  due 
letters  patent  therefor  be  issued  to  your  orator,  and  for  such 
other  and  further  relief  as  equity  may  require,  and  as  to  your 
honors  may  seem  meet. 

May  it  please  your  honors  to  grant  unto  your  orator  a 
decree  in  conformity  with  the  prayer  of  this  bill,  and  a  writ 
of  subpoena  of  the  United  States,  directed  to  the  said  C.  D., 
and  commanding  him  to  appear  and  answer  unto  this  bill  of 
complaint,  and  abide  and  perform  such  order  and  decree  in 
the  premises  as  to  the  court  shall  seem  meet,  and  be  required 
by  the  principles  of  equity  and  good  conscience. 
[Signature  and  Verification.  See  Nos.  84  and  85.] 
(i)  R.  S,,  4915 ;  Foster's  Fed.  Prac,  Sec.  11,  and  cases  cited. 


No.  347. 

Petition  of  Manufacturer  to  Intervene  and  Defend  its 

Vendee. 

[Caption^ 

Your  petitioner,  the  G.  S.  Co.,  respectfully  shows  unto  your 
honors  that  it  is  a  corporation  organized  under  the  laws  of 

the  state  of ,  and  that  it  is  engaged  in  the  business  of 

manufacturing,  and  manufactures,  among  other  things,  [har- 
vesting machines]. 

And  your  petitioner  further  shows  unto  your  honors  that 

on  the day  of ,  A,  B.  filed  his  bill  in  equity  in  this 

court  against  C.  D.,  charging  him  with  the  infringement  of 

letters  patent  of  the  United  States,  No. ,  granted  A.  B. 

on  the day  of ,  for  an  improvement  in  [harvesting 

machines],  by  selling  and  offering  for  sale  certain  [harvesting 
machines],  alleged  to  contain  the  invention  set  forth  in  said 
patent,  praying  process  and  injunction  restraining  the  further 
use  or  sale  by  the  said  C.  D.  of  the  [harvesting  machines] 
alleged  to  be  an  infringement  of  the  patent  aforesaid. 

And  your  petitioner  further  shows  unto  your  honors  that 
the  said  [harvesting  machines],  alleged  to  be  an  infringement 


BILLS   IN    EQUITY.  32 1 

of  the  patent  aforesaid,  were  manuiactured  by  your  peti- 
tioner at  ,  and  were  purchased  from  it  by  the  said  C. 

D.,  and  your  petitioner  says  that  it  has  a  large  number  of 
vendees  throughout  this  country  who  are  selhng  its  [harvest- 
ing machines],  similar  in  construction  to  those  sold  by  said 
C.  D.,  the  defendant  herein,  and  that  A.  B.  threatens  to  bring 
suit  against  other  vendees  of  your  petitioner,  thereby  greatly 
injuring  its  business  and  unnecessarily  harrassing  its  custom- 
ers and  multiplying  suits. 

And  your  petitioner  further  says  that  C.  D.  has  not  sufl&- 
cient  interest  in  the  result  of  this  suit  to  properly  defend  the 
same,  and  that  your  petitioner  has  great  interest  in  the  result 
of  this  controversy,  in  that  if  a  decree  be  entered  against  the 
said  C.  D.  herein,  and  an  injunction  granted,  as  prayed  in  the 
bill  of  complaint  herein,  your  petitioner  fears  that  the  said 
A.  B.  will  pursue  its  vendees  and  file  suits  against  them,  as 
he  has  threatened  to  do,  and  that  preliminary  injunctions  will 
be  granted  in  such  suits  on  the  ground  of  prior  adjudication 
of  the  validity  of  the  patent,  all  of  which  will  tend  to  greatly 
injure  the  business  of  your  petitioner  to  his  irreparable  loss. 

And  your  petitioner  further  shows  unto  your  honors  that 
the  said  A.  B.  has  never  brought  suit  against  your  petitioner 
charging  it  with  infringement  of  said  patent,  although  your 
petitioner  has  been  manufacturing,  advertising,  and  selling 
[harvesting  machines]  like  those  alleged  to  be  an  infringe- 
ment in  the  bill  of  complaint  herein,  and  the  said  A.  B.  knew 
well  that  your  petitioner  was  so  doing  long  before  he  filed 
his  bill  herein.  • 

Wherefore  your  petitioner  prays  that  it  may  be  made  party 
defendant  herein  and  be  allowed  to  intervene,  and  be  made 
defendant  herein  and  to  file  an  answer  and  to  defend  the 
same,  and  for  all  other  and  further  relief. 

The  G.  S.  Co., 
By  G.  S.,  President. 
R.  X., 

Attorney  for  Petitioner. 

[^Verification.     See  No.  85.] 


322  PATENTS. 

No.  348. 
Order  Granting  Permission  to  Intervene  and  Defend. 

[Caption^ 

This  cause  being  heard  this day  of ,  upon  peti- 
tion of  The  G.  S.  Co.  for  leave  to  intervene  and  defend  the 
same,  said  petition  showing  the  said  The  G.  S.  Co.  to  be  the 
manufacturer  of  the  devices  charged  as  infringement  of  the 
patent  sued  on  herein,  and  counsel  having  been  heard  for 
the  respective  parties,  it  is  ordered  that  the  said  petitioner 
have  leave  to  intervene  as  defendant,  and  to  defend  the 
same. 


DEMURRER  AND    PI,EAS.  323 


DEMURRER   AND   PLEAS. 

No.  349. 

Demurrer  (i). 

The  Demurrer    of  C.  D.,  Defendant  herein,  to  the  Bill  of 
Complaint  of  the  above-named  Plaintiffs. 

This  defendant,  by  protestation,  not  confessing  or  ac- 
knowledging all  or  any  of  the  matters  or  things  in  the  said 
bill  of  complaint  contained  to  be  true  in  such  manner  and 
form  as  the  same  are  therein  set  forth  and  alleged,  demurs 
to  the  said  bill.     And  for  causes  of  demurrer  shows : 

First.  That  it  does  not  appear  from  said  bill  of  complaint 
that  the  plaintiffs  herein  have  such  title  or  interest  in  or 
under  the  letters  patent  herein  sued  upon  as  to  enable  them 
to  maintain  suit  against  this  defendant. 

Second.  That  the  bill  of  complaint  does  not  show  any  inter- 
est of  D.  &  Co.  in  the  subject-matter  of  the  litigation. 

Thii'd.  That  it  does  not  appear,  from  the  bill  of  complaint, 
that  the  said  G.  W.  and  D.  &  Co.  have  a  joint  interest  in  the 
subject-matter  of  this  litigation. 

Fourth.  It  does  not  appear  from  the  bill  that  the  plain- 
tiff, D.  &  Co.,  is  entitled  to  any  relief  whatever. 

Wherefore,  and  for  divers  other  good  causes  of  demurrer 
appearing  on  the  said  bill,  this  defendant  demurs  thereto. 
And  it  prays  the  judgment  of  this  honorable  court  whether 
it  shall  be  compelled  to  make  any  answer  to  the  said  bill; 
and  it  humbly  prays  to  be  hence  dismissed  with  its  reason- 
able costs  in  this  behalf  sustained(2). 

R.  X., 
Solicitor  for  Defendant. 

(i)  Consult  No.  122  et  seg.,  and  notes.  See  Robinson  on  Patents, 
Sec.  mo;  Story's  Eq.  PI.,  Sees.  436,  646;  Beach's  Mod.  Eq.  Prac,  Sees. 
224,  280,  and  31st  to  38th  Rules  in  Equity. 


324  PATENTS. 

The  question  of  patentability  can  not  be  decided  on  demurrer  except 
in  clear  cases.  Blessing  vs.  Steam  Copper  Works,  34  Fed.  Rep.,  753  ; 
Dick  vs.  Oil-Weil  Supply  Co.,  25  Fed.  Rep.,  125.  A  demurrer  does  not 
admit  that  the  invention  is  patentable  ;  see  Engraving  Co.  vs.  Hoke, 
30  Fed.  Rep.,  444.  Delay  in  applying  for  a  reissue  may  be  raised  by  de- 
murrer ;  see  Wollensak  vs.  Reiher,  105  U.  S.,  96.  Demurrer  to  a  bill  for 
profits  filed  one  day  before  the  patent  expires  has  been  sustained. 
Davis  vs.  Smith,  19  Fed.  Rep.,  823.  Question  of  title  raised  by  de- 
murrer can  not  be  removed  by  amendment ;  Steam  Relief  Valve  Co.  vs. 
City,  19  Fed.  Rep.,  253 ;  S.  C,  28  O.  G.,  283. 

A  defendant  may  demur  to  the  whole  bill,  or  demur  to  a  part  and 
answer  to  the  residue,  but  can  not  both  answer  and  demur  to  the  whole 
bill ;  see  32d  Rule  in  Equity,  and  consult  Nos.  135,  138,  and  139  supra; 
see  also  Adams  vs.  Howard,  9  Fed.  Rep.,  347,  and  compare  the  37th 
Rule  in  Equity,  as  interpreted  in  Hayes  vs.  Dayton,  8  Fed.  Rep.,  702  ; 
but  if  the  demurrer  and  answer  are  filed  simultaneously,  the  plaintiff 
waives  the  right  to  object  if  he  goes  to  argument  on  the  demurrer ;  see 
Hayes  vs.  Dayton,  above. 

This  demurrer  was  sustained  in  Blair  vs.  Lippincott  Glass  Co.,  52 
Fed.  Rep.,  226. 

(2)  There  must  be  an  affidavit  and  certificate  of  counsel;  see  31st 
Rule  in  Equity.  For  form  of  Affidavit  and  Certificate,  see  Nos.  133  and. 
134- 


No.  350. 

Plea  setting  up  Defense  of  License  from  Patentee. 

\  Caption^ 
The  Plea  of  C.  D.,  Defendant,  to  the  Bill  of  Complaint  herein. 

This  defendant,  by  protestation,  not  confessing  or  acknow- 
ledging things  by  said  bill  set  forth  and  alleged  to  be  true  in 
such  manner  and  form  as  the  same  are  thereby  and  therein 
set  forth  and  alleged,  and  for  plea  to  the  whole  of  said  bill^ 
says : 

That  prior  to  the  alleged  assignment  of  the  said  letters  pat- 
ent sued  on  to  A.  B.,  plaintiff  herein,  the  said  L.  M.,  patentee, 

on  or  about  the day  of 1890,  executed  a  license  to 

said  C.  D.,  granting  him  the  right  to  make  plows  under  the 
said  letters  patent,  for  the  full  term  of  the  life  of  the  said 
patent,  in  one  factory,  located  at  Akron,  Ohio,  and  to  sell  the 


DEMURRER   AND   PLEAS.  325 

same  throughout  the  United  States,  in  consideration  of  one 
thousand  dollars,  which  was  paid  said  L.  M.  by  thi^  defend- 
ant. The  license  referred  to  is  in  words  and  terms  as  follows : 
[Here  set  forth  the  license  in  writing.  If  not  in  writings  so 
state'\,  and  that  this  defendant  has  heretofore  manufactured 
plows  like  those  described  and  claimed  in  the  letters  patent 
sued  on  under  said  license,  at  Akron,  Ohio,  and  at  no  other 
place. 

All  of  which  statements  this  defendant  avers  to  be  true, 
and  he  pleads  the  said  license  to  the  said  plaintiflf's  bill, 
and  prays  judgment  of  this  honorable  court  whether  he 
should  be  compelled  to  make  any  further  or  other  answer  to 
the  said  bill,  and  prays  to  be  hence  dismissed  with  his  costs 
in  this  behalf  most  wrongfully  sustained.  C.  D. 

[  Verification  and  Certificate  of  Counsel.  For  forms.,  see  Nos. 
133  and  134.] 

As  to  pleas  in  Equity  generally,  see  Story  Eq.  PI.,  Sees.  647,  837;  31st 
to  38tli  Rules  in  Equity;  Beach's  Modern  Equity  Prac,  Sees.  293,  330, 
and  forms  Nos.  154  et  seq.,  supra. 

As  to  pleas  in  Equity  in  Patent  eases,  see  Robinson  on  Patents,  Sees. 
1 1 12  et  seq.y  and  cases  cited  in  notes. 


No.  351. 

A  Plea  setting  up  Defense  of  prior  suit. 

\Caption  a7td  introduction.,  and  first  paragraph  as  in  No.  350, 
and  continue  as  follows  :~\ 

That  heretofore,  to  wit,  on  or  about  the day  of , 

1894,  the  said  plaintiflf,  A.  B.,  filed  his  bill  of  complaint  in 

the  circuit  court  of  the  United  States  for  the district  of 

,  against  E.  F.,  showing  therein  that  the  said  A.  B.  was 

the  patentee,  and  still  holds  the  title  of  the  said  letters  patent 
No. ,  in  which  bill  the  said  E.  F.  was  charged  with  in- 
fringement of  the  said  letters  patent  by  the  sale  of  [carriage- 
tops],  the  same  as  those  charged  to  be  the  infringement  of  the 
same  patent  in  the  bill  of  complaint  herein,  and  the  same  re- 
lief was  prayed  as  is  prayed  in  the  bill  of  complaint  herein. 


326  PATENTS. 

That  the  said  B.  F.  was,  at  the  time  the  said  infringement 
was  complained  of,  a  vendee  of  this  defendant,  and  was  sell- 
ing [carriage-tops]  manufactured  by  this  defendant. 

That  the  said  E.  F.  appeared  by  counsel  and  made  answer 
to  said  bill  of  complaint,  and  proofs  were  taken  in  behalf  of 

plaintiflf  and  defendant,  and  on  or  about  the day  of , 

the  said  case  came  on  to  be  heard  before  his  honor,  Judge  W., 
and  was  argued  by  counsel  for  plaintiff,  as  well  as  for  defend- 
ant, and,  after  due  consideration,  his  honor.  Judge  W.,  pro- 
nounced his  opinion,  holding  that  the  said  [carriage-tops} 
were  not  an  infringement  of  the  said  letters  patent,  and 
entered  a  decree  accordingly,  dismissing  the  said  bill  of  com- 
plaint at  plaintiff's  cost. 

That  the  [carriage-tops]  referred  to  in  the  bill  of  complaint 
herein,  and  all  the  [carriage-tops]  and  devices  for  the  manu- 
facture, use,  and  sale  of  which  this  defendant  is  charged  with 
infringement  in  the  bill  of  complaint  herein,  are  the  same  in 
all  respects  as  are  those  for  the  sale  of  which  the  said  E.  F. 
was  charged  with  infringement  in  the  aforesaid  bill  of  com- 
plaint, dismissed  as  aforesaid,  and  which  is  the  object  of 
controversy  in  said  suit. 

Wherefore  this  defendant  pleads  this  prior  adjudication 
upon  the  matters  and  things  here  in  controversy,  all  which 
statement  this  defendant  avers  to  be  true,  etc.  \conclude  as 
in  No.  350]. 


No.  352. 

A  Plea  Setting  up  the  Defense  of  a  License  and 
Settlement  of  prior  suit  (i). 

[Caption^  introduction^  and  first  paragraph  as  in  No.  350, 
and  continue  as  follows  {\ 

That  heretofore,  to  wit :  on  or  about  the day  of , 

1888,  the  said  plaintiff,  A.  B.,  filed  his  bill  of  complaint  in  this 
court  against  C.  D.,  showing  therein  that  the  said  A.  B.  had 
acquired  title  of  the  said  letters  patent  No. ,in  manner  and 


DEMURRER   AND    PLEAS.  327 

form  set  forth  in  the  bill  herein,  whereby  he  was  vested  with 
the  exclusive  rights  under  said  letters  patent,  in  which  bill 
the  said  C.  D.  was  charged  with  infringing  the  aforesaid  let- 
ters patent  by  the  manufacture,  use,  and  sale  of  [pumps],  the 
same  as  those  charged  to  be  the  infringement  in  the  bill  of 
complaint  herein,  and  the  same  relief  prayed  as  is  prayed  in 
the  bill  of  complaint  herein. 

That  the  said  defendant  appeared  by  counsel,  and  there- 
upon, while  said  cause  was  pending,  overtures  for  settlement 
were  made  to  the  said  defendant  by  the  said  A.  B. 

That  the  said  defendant  thereupon,  and  while  said  suit  was 
pending,  on  or  about  the day  of ,  1889,  for  the  pur- 
pose of  protecting  his  patrons  and  vendees  from  the  annoy- 
ance to  which  they  were  subject  by  reason  of  the  pendency 
of  said  suit,  and  by  reason  of  threats  of  suits  under  the  same 
patents  being  made  by  said  plaintiff  against  the  said  patrons 
and  vendees  of  the  defendant,  and  for  the  purpose  of  avoid- 
ing for  himself  the  expense  of  further  litigation,  entered  into 
a  contract  with  the  said  plaintiff,  whereby,  in  consideration 
of  the  agreement  on  the  part  of  the  defendant  therein,  to 
dismiss  a  certain  suit  for  infringement  of  letters  patent  for 
improvements  in  [pumps],  then  pending  in  this  court,  in 
which  said  defendant  was  party  plaintiff,  and  J.  M.,  dealer  in 
[pumps]  manufactured  by  the  said  A.  B.  under  the  patents 
herein  sued  on,  was  defendant,  and  the  said  [pumps]  so  man- 
ufactured were  complained  of  as  infringements  of  the  patents 
so  sued  upon,  and  the  said  plaintiff  A.  B.  agreed  forthwith  to 
dismiss  his  aforesaid  bill  against  C.  D.,  and  to  release  and 
license  the  said  C.  D.  to  manufacture  and  sell  [pumps]  under 
each  and  all  of  the  patents  owned  by  him  throughout  the 
term  thereof. 

That,  in  pursuance  of  said  contract,  at  or  about  the  date 
aforesaid,  an  agreement  in  writing  was  entered  into  by  the 
said  parties,  duly  signed  and  executed  by  the  said  C.  D.  and 
the  said  A.  B.,  and  thereupon  a  duplicate  thereof  made  in  ink 
by  the  said  A.  B.,  signed  and  executed  as  aforesaid,  and  by 


328  PATENTS. 

him  delivered  to  the  said  C.  D.  Which  said  agreement  in 
writing  is  in  words  and  terms  as  follows,  to  wit :  [here  set 
forth  the  agreement^  the  said  suit  against  C.  D.,  and  the 
said  suit  against  J.  M.,  being  the  only  suits  pending  between 
the  said  parties  directly  or  indirectly. 

That  the  said  licenses  referred  to  therein  are  licenses  to 
manufacture,  use,  and  sell  under  all  the  patents  recited  in  the 
respective  bills  of  complaint  therein,  and  all  other  patents 
relating  to  pumps  owned  or  controlled  by  the  said  parties 
respectively  or  either  of  them. 

That  the  said  agreement  was  at  the  time,  to  wit:  on  or 
about  the day  of ,  1889,  fully  understood  and  in- 
tended by  the  plaintiflf  herein,  and  each  and  all  parties 
thereto,  to  be  a  final  agreement,  executed,  and  as  such  in 
force  and  effect  from  the  date  thereof. 

That  he  having  often  requested  the  said  A.  B.  to  with- 
draw his  said  bill  of  complaint  in  accordance  with  the  said 
contract  and  agreement,  offering  simultaneously  to  dismiss  his 
said  bill  against  the  said  J.  M.,  and  the  said  A.  B.  having  re- 
fused so  to  do,  he,  the  said  C.  D.,  moved  this  honorable 
court  for  an  order  dismissing  the  said  bill  of  complaint  in 
pursuance  of  said  contract  and  agreement,  and  his  said  mo- 
tion having  been  heard  by  his  honor.  Judge  W.,  upon  argu- 
ment as  well  in  behalf  of  said  plaintiff  as  said  defendant, 
the  aforesaid  bill  was  thereupon  ordered  dismissed,  and  was 
dismissed,  and  the  said  bill  against  the  said  J.  M.  was  there- 
upon by  plaintiff  duly  dismissed. 

That  the^  [pumps]  referred  to  in  the  bill  of  complaint 
herein,  and  all  the  pumps  and  devices  by  the  manufacture, 
use,  and  sale  of  which  this  defendant  is  charged  with  in- 
fringement in  the  bill  of  complaint  herein,  are  the  same  in 
all  respects  as  those  by  the  manufacture,  use,  and  sale  of 
which  the  said  C.  D.  was  charged  with  infringement  in  the 
aforesaid  bill  of  complaint,  dismissed  as  aforesaid,  and  which 
were  the  object  of  controversy  in  said  suit,  and  released  and 
licensed  by  the  aforesaid  contract  and  agreement,  and  have 


DEMURRER  AND   PLEAS.  329 

been  and  are  being  manufactured  and  sold  by  the  said  C.  D. 
under  and  in  accordance  with  the  terms  and  provisions  of 
said  contract  and  agreement. 

Wherefore  this  defendant  avers,  by  virtue  of  the  premises, 
the  said  [pumps]  and  all  [pumps]  and  devices  complained  of 
in  said  bill  of  complaint  herein,  manufactured  by  the  said 
C.  D.,  are  released  as  well  in  respect  to  their  manufacture 
as  in  respect  to  their  sale  and  use  by  the  agents  and  vendees 
of  the  said  C.  D.  from  all  adverse  claim  of  right  under  the 
aforesaid  letters  herein  sued  upon,  and  in  all  letters  patent 
owned  in  whole  or  in  part  by  the  said  A.  B.  and  the  full  ex- 
tent of  his  interest  therein. 

That  all  of  which  this  defendant  avers  to  be  true,  and 
he  pleads  the  said  release,  and  prays  the  judgment  of 
this  honorable  court  whether  he  should  be  compelled  to 
make  any  further  or  other  answer  to  so  much  of  the  said  bill 
as  is  herein  pleaded  unto,  and  prays  to  be  hence  dismissed 
with  his  costs  and  charges  in  that  behalf  most  wrongfully 
sustained.  C.  D. 

\yerification  and  Certificate  of  Counsel.     See  Nos.  133  and 

(i)  See  notes  to  No.  350. 


No.  353. 

Plea  to  Jurisdiction. 
For  form  of  Plea,  see  No.  163. 


330  PATENTS. 


ANSWERS. 

No.  354. 

General  Form  (i). 

[Caption.'] 

The  Answer  of  C.  D.  to  the  Bill  of  Complaint  herein. 

This  defendant  now,  and  at  all  times,  saving  and  reserving 
unto  himself  all  benefit  and  advantage  of  exception  which 
can  or  may  be  had  or  taken  to  the  errors  or  uncertainties  or 
other  imperfections  in  said  bill  of  complaint  contained,  for 
answer  thereto  or  unto  so  much  of  such  parts  thereof  as  said 
defendant  is  advised  is  or  are  material  for  him  to  answer  unto, 
says  as  follows : 

First.  He  denies,  upon  information  and  belief,  that  the 
said  A.  B.  was  the  true,  original,  or  first  inventor  of  any  new 

or  useful  invention  in machines,  as  alleged  in  said  bill ; 

says  that  it  is  not  true  that  said  alleged  invention  was  not 
known  or  used  in  this  country,  and  not  patented  or  described 
in  any  printed  publication  in  this  or  foreign  countries  before 
his  alleged  invention  thereof,  or  that  the  same  had  not,  at 
the  time  of  his  application  for  a  patent  therefor,  been  in 
public  use  or  on  sale  for  more  than  two  years. 

Second.  He  is  not  informed,  except  by  said  bill  of  com- 
plaint, whether  letters  patent  for  said  alleged  invention  in 
due  form  of  law  were  issued  to  said  A.  B.,  or  whether  said 
alleged  letters  patent  were  under  the  seal  of  the  patent  office 
of  the  United  States,  or  were  signed  by  secretary  of  the 
interior,  or  countersigned  by  the  commissioner  of  patents, 
and  leaves  the  plaintiff  to  make  such  proof  thereof  as  he 
may;  and  denies  that  the  said  letters  patent  granted  to  the 
said  A.  B.,  his  heirs  or  assigns,  for  the  term  of  seventeen 
years,  or  for  any  other  term,  the  exclusive,  or  any  other  right, 


ANSWERS.  331 

to  make,  use,  or  vend  the  said  alleged  invention  throughout 
the  United  States  and  teritories  thereof,  or  any  right  what- 
soever. 

Third.  He  denies  that,  at  the  time  alleged  in  said  bill  of 
complaint,  or  at  any  time,  he  did  make,  use,  or  vend ma- 
chines containing  and  embodying  the  invention  set  forth  and 
covered  by  said  letters  patent  sued  upon,  or  that  he  has,  in  any 
way,  infringed  upon  the  exclusive  rights,  or  any  rights,  of  the 
complainant,  or  intended  so  to  do ;  denies  that  he  has  derived 
or  realized  any  profits  which  plaintiflf  would  have  derived 
from  his  alleged  exclusive  rights,  and  denies  that  plaintiflf 
is  deprived  of  any  royalties,  or  has  incurred  any  damages  by 
any  unlawful  or  wrongful  acts  of  said  defendant. 

Fourth.  He  says  that  upon  information  and  belief  that 
the  said  A.  B.  was  not  the  original  and  first  inventor  or  dis- 
coverer of  the  invention  purporting  to  be  covered  by  the  said 
letters  patent,  or  of  any  material  or  substantial  parts  thereof, 
and  that  the  same,  or  material,  or  substantial  part  thereof,  had 
been  in  public  use  and  on  sale  in  this  country  prior  to  said 
alleged  invention,  and  for  more  than  two  years  before  the 
application  for  said  letters  patent ;  and  further,  that  the  same 
had  been  described  and  illustrated  in  printed  publications 
and  patents  prior  to  the  date  of  the  supposed  invention  of  the 
said  A.  B. 

Said  defendant  specifies  instances  of  such  prior  use  and 
publication  as  follows,  to  wit: 

Letters  patent  of  the  United  States  as  follows: 

No. ,  granted  S.  W.  C,  June  25,  1878. 

No. ,  granted  J.  N.  R.,  October  29,  1879,  ^tc. 

Letters  patent  of  the  Kingdom  of  Great  Britain  as  follows: 

No. ,  of  1875,  granted  H.  S.  W.,  and  dated  June 

12,  1875,  etc. 

Machines  manufactured  and  sold  by  the  N.  G.  Company, 
at  Cincinnati,  Ohio,  known  at  Cincinnati,  Ohio,  to  W.  S., 
whose  residence  is  Akron,  Ohio,  and  to  G.  B.  M.,  whose  res- 
idence is  Chicago,  Illinois,  and  to  others,  whose  names  and 


333  PATENTS. 

places  of  residence  the  defendant  craves  leave  to  furnish 
hereafter. 

A  printed  publication,  made  up  of  drawings  and  figures  il- 
lustrating various  machines  entitled  "Modern  Machines," 
issued  and  circulated  by  the  College  Hill  Manufacturing 
Company,  Edinburg,  Scotland,  which  the  defendant  craves 
leave  to  produce  and  exhibit  to  the  court  at  any  hearing  of 
this  case,  together  with  proof  that  the  particular  publication 
produced  was  printed  and  circulated  at  least  as  long  as  four 
years  before  the  alleged  invention  of  A.  B.  Reference  to  the 
illustrations,  nine  in  number  entitled  \here  give  titles  of  illus- 
trations]^ on  page  lo,  also  to  three  illustrations  on  page  21, 
also  to  figures  number  9,  11  (etc.),  on  page  25  of  said  publi- 
cation. 

Fifth.  He  says,  upon  information  and  belief,  that  the  let- 
ters patent  sued  upon  are  invalid  for  want  of  patentable  in- 
vention. 

Sixth.  He  says,  upon  information  and  belief,  that  the 
plaintiff  has  full  and  adequate  relief  at  law,  and  that  this 
•court,  as  a  court  of  equity,  has  no  jurisdiction. 

Wherefore  this  defendant,  having  fully  answered  to  the  said 
bill  of  complaint  in  so  far  as  he  is  advised  the  same  is  mate- 
rial and  necessary  to  be  answered  unto,  denies  that  the  said 
plaintiff  is  entitled  to  the  relief  or  any  part  thereof  in  the 
said  bill  of  complaint  demanded,  or  any  relief  whatsoever ; 
prays  the  same  advantage  of  his  aforesaid  answer  as  if  he 
had  pleaded  and  demurred  to  said  bill  of  complaint,  and 
prays  to  be  hence  dismissed  with  his  reasonable  charges  in 
this  behalf  most  wrongfully  sustained.  C.  D. 

X.  &X., 

Solicitors  for  Defendant. 
R.  X., 

of  Counsel. 

(i)  See  Robinson  on  Patents,  Sec.  1 1 14,  et  seq.\  R.  S.,  Sec.  4920 ;  con- 
sult also  Robinson  on  Patents,  Sec.  959  et  seq.  As  to  forms  for  formal 
parts  of  an  Answer,  see  No.  176  et  seq. 


SPECIAL  ALLEGATIONS   IN   ANSWERS.  333. 


SPECIAL  ALLEGATIONS  IN  ANS\VERS. 

The  following  allegations  may  be  inserted  in  the  forego- 
ing answer  when  it  is  desired  to  set  up  any  of  the  following 
defenses.  A  few  apparent  changes  may  be  required  in  No. 
354  when  these  insertions  are  made.  Special  defenses^ 
which  in  actions  at  law  must  be  set  forth  in  a  notice,  in 
equity  appear  only  in  the  answer.  See  Robinson  on  Pat- 
ents, Sec.  1116 ;  also  Sees.  959  to  984  ;   R.  S.,  Sec.  4920. 


No.  355. 

Denying  Assignees  Right  to  Sue. 

\Here  the  patentee  and  plaintiff  are  7iot  the  same^  and  S.  T.y 
the  actual  patentee^  should  be  inserted^  and  insert  the  folloiving 
as  third  f\ 

He  is  not  sufficiently  informed  whether  the  said  S.  T.,  by 
an  instrument  in  writing,  assigned  to  the  plaintiff  all  his 
right,  title,  and  interest  in,  or  any  exclusive  rights  in,  said  in- 
vention or  said  patent ;  or  whether  said  written  assignment 
includes  the  right  to  sue  for  and  collect  damages  for  the  un- 
authorized use  of  said  alleged  invention,  or  whether  said 
instrument  was  duly  recorded  in  the  patent  office  of  the 
United  States,  and  leaves  the  plaintiflf  to  make  such  proof 
thereof  as  he  may. 


No.  356. 

Alleging  Imperfect  Specification  (i). 

He  is  informed,  and  believes  it  to  be  true,  that  for  the  pur- 
pose of  deceiving  the  public,  the  description  and  specification 
of  the  said  invention  and  discovery  filed  by  A.  B.,  the  pat- 


334 


PATENTS. 


entee  thereof,  in  the  patent  office  of  the  United  States,  was 
made  to  contain  less  than  the  whole  truth  relative  to  his  said 
invention  and  discovery  [or,  more  than  is  necessary  to  pro- 
duce the  desired  effect]  in  this,  that  [sei  forth  the  particular s\. 
(i)  R.  S.,  Sec.  4920,  first  clause. 


No.  357. 

Alleging  Defective  Specification. 

He  is  informed,  and  believes  it  to  be  true,  that  the  descrip- 
tion of  the  alleged  invention,  as  set  forth  in  the  specification 
annexed  to  said  letters  patent  sued  on,  is  incomplete  and 
ambiguous,  and  the  said  specification  does  not  show  the 
method  of  making  and  using  the  said  alleged  patented  in- 
vention in  such  full,  clear,  and  exact  terms  as  to  enable  any 
person  skilled  in  the  art  or  science  to  which  it  appertains  to 
make  and  use  the  same. 


No.  358. 

Denying  Utility. 

He  denies  that  the  said  invention  so  patented  to  the  said 
A.  B.  is  of  great,  or  any,  utility  and  value,  or  that  the  same 
has  been  introduced  into  public  use,  or  that  the  public  gen- 
erally, or  any  portion  thereof,  have  acquiesced  in  and  ac- 
knowledged the  plaintiff's  exclusive  right  to  the  same,  or 
any  portion  thereof. 


No.  359. 

Denying  Prior  Adjudication. 

He  is  not  informed,  save  by  said  bill  of  complaint  (and 
affidavits  filed  in  this  suit),  whether  or  not  the  said  A.  B.  in- 
stituted and  prosecuted  in  the  circuit  court  of  the  United 

States  for  the  district  of against  L.  W.,  or  that 

judgment  of  the  court  was  pronounced,  or  that  a  decree  was 


SPECIAL   ALLEGATIONS   IN   ANSWERS.  335 

entered  therein  aflErming  the  validity  of  said  letters  patent 
sued  on,  or  a  perpetual  injunction  granted  and  issued  against 
the  said  L.  W.,  and  he  therefore  denies  the' same;  but  this 
defendant  says  that  he  [is  informed  and  believes  that  a  cer- 
tain suit  was  brought  by  the  said  A.  B.  against  one  L.  W.  in 

the  district  of ,  and  that  an  answer  was  filed  in 

the  said  suit,  and  that  the  said  case  was  determined  without 
a  trial  on  the  merits  of  the  said  controversy,  and  denies  that 
the  decree  in  the  said  case  in  any  way  alBfected  or  concerned 
any  device  or  machine  similar  to  devices  and  machines 
made,  used,  or  sold  by  the  defendant  herein. 


No.  360. 

Alleging  Limitation  of  Claims  of  Patent  by  Proceedings 
in  the  Patent  Office. 

He  is  informed  and  believes  that,  while  the  application  for 
the  said  letters  patent  in  said  bill  mentioned  was  pending 
in  the  patent  office  of  the  United  States,  the  applicant  for 
the  patent,  the  said  A.  B.,  so  limited  and  confined  the  claims 
of  the  said  application  under  the  requirements  of  the  com- 
missioner of  patents  that  he  can  not  now  seek  for  or  obtain 
a  construction  for  such  claims  sufficiently  broad  to  cover  the 
construction  used  by  this  defendant. 


No.  361. 

Denying  Grant  of  Licenses  and  Public  Acquiescence. 

He  denies,  upon  information  and  belief,  that  the  alleged 
rights  of  plaintifiF  under  said  letters  patent  sued  on  have  been 
acquiesced  in,  and  denies  that  the  plaintiff" has  granted  licenses 
under  said  letters  patent  or  has  applied  the  said  alleged  in- 
vention to  practical  use  extensively  or  otherwise,  or  has  ex- 
pended large  sums  of  money  in  and  about  said  invention. 


336  PATENTS. 

No.  362. 

Denying  Plaintiff's  Title. 

He  denies,  upon  imformation  and  belief,  that  plaintiflf  has 
such  title  in  said  letters  patent  as  to  enable  him  to  maintain 
this  suit. 


No.  363. 

Alleging  Abandonment. 

He  says,  upon  information  and  belief,  that  the  alleged  in- 
vention had  been  abandoned  to  the  public  prior  to  A.  B.'s 
application  for  a  patent  therefor. 


No.  364. 

Alleging  Invention  by  Another  Person  (i). 

He  says,  upon  information  and  belief,  that  prior  to  the  alleged 
invention  of  A.  B.,  and  prior  to  his  filing  an  application  for  a 
patent  in  the  patent  office  of  the  United  States,  that  one  S. 

H.  exhibited  the  said  invention  to  A.  B.,  of ,  and  said  A. 

B.,  seeking  surreptitiously  to  appropriate  the  aforesaid  inven- 
tion, or  so  much  thereof  as  is  embraced  in  the  claims  of 
the  patent  sued  on,  unjustly  and  unlawfully  filed  in  the 
patent  office  of  the  United  States  an  application  therefor, 
wherein  he  falsely  alleged  himself  to  be  the  inventor  thereof, 
and  thereafter  he  surreptitiously  and  unjustly  obtained  the 
patent  sued  on  for  that  which  was  in  fact  invented  by  S.  H., 
who  was  using  reasonable  diligence  in  adapting  and  perfect- 
ing his  said  invention. 

(1)  R.  S.,  Sec.  4920,  second  clause. 


No.  365. 

Alleging   Limitation    of  Duration    of  Patent  by    a    Prior 
I  Foreign  Patent  (i). 

He  says,  upon  information  and  belief,  that  before  the  date 
of  the  patent  sued  on,  viz.,  the day  of ,  1889,  letters 


SPECIAL   ALLEGATIONS   IN   ANSWERS.  337 

patent  of  the  Kingdom  of  Italy  were  granted  to  the  said  A. 

B.  for  the  term  of  three  years  from  the  day  of , 

1887,  for  the  same  alleged  invention  as  that  set  forth  in  the 
patent  sued  on,  which  said  Italian  patent  expired  on  the 

day  of ,  1890,  and  that  the  life  of  the  said  letters 

patent  sued  on  terminated  with  the  expiration  of  said  Ital- 
ian patent, 
(i)  R.  S.  Sec.  4887. 


338  PATENTS. 


EXCEPTIONS.  DEPOSITIONS,  ETC. 
No.  366. 

Exceptions  to  Answer. 

Consult  forms  No.  211  et  seq. 


See  form  No.  218. 


No.  367. 

Replication. 


No.  368. 

Appearance. 
See  forms  Nos.  11,  12,  and  13. 


No.  369. 

Amendment. 
Consult  forms  No.  234  et  seq. 


No.  370. 

Order  Granting  Leave  to  Amend  Answer  and  Set  up 
Additional  Defenses. 

\^Caption.'\ 

Upon  motion  of  the  defendant,  it  is  ordered  that  he  have 
leave  to  amend  his  answer  herein  and  to  set  up  further  prior 
uses  therein  to  have  the  same  force  and  effect  as  if  they 
were  set  up  in  the  original  answer  heretofore  filed. 


No.  371. 

Security  for  Costs. 

For  form  of  Motion  for  Additional  Security  for  Costs,  see 
No.  220. 


EXCEPTIONS,    DEPOSITIONS,    ETC.  339 

No.  372, 

Limiting  Time  within  which  to  take  Evidence. 

For  forms  of  Motion  to  Assign  Time  and  Order  on  the 
same,  see  Nos.  244  and  245. 


No.  373. 

Depositions. 

For  forms  for  Stipulation  Appointing  Notary  Public  an 
Examiner,  Notice  for  Taking  Depositions,  Commencement 
for  Depositions,  Certificate,  see  Nos.  22-25,  ^^^  256  el  seq,^ 
and  for  form  for  Transmission,  see  No.  26. 


No.  374. 

Depositions  De  Bene  Esse. 

Consult  Nos.  22  to  26. 


No.  375. 

Cost  Bill. 


For  form,  see  No.  28. 


No.  376. 

Stipulation  to  Submit  Cause  on  Brief. 
For  form  see  No.  267. 


No.  377. 

Entry  Discontinuing  Case. 

\Caption^ 
To  the  Clerk  of  the  Court : 

We  hereby  discontinue  the  above-entitled  cause,  without 
prejudice,  at  plaintiiFs  cost.  X,  &  X., 

Attorneys  for  Plaintiflf. 


340  PATENTS. 


PRELIMINARY  INJUNCTION  PROCEEDINGS. 

No.  378. 

Notice  of  Motion  for  Preliminary  Injunction    (i). 

[Caption.l 
To  R.  Y., 

Counsel  for  Defendant: 

Please  take  notice  that  on  the day  of ,  1893,  at 

ten  o'clock  a.  m.,  or  as  soon  thereafter  as  counsel  can  be 
heard,  I  will  move  for  a  preliminary  injunction,  as  prayed  in 
the  bill  of  complaint  herein,  based  on  the  decisions  of  the 

courts  in  former  suits  under   letters   patent  No.  ,  on 

which  this  suit  is  brought,  and  the  affidavits  of  E.  F.,  G.  H., 
and  J.  K.,  and  the  exhibits  referred  to  in  said  affidavits,  a 
true  copy  of  which  is  herewith  served  upon  you. 

R.  X., 
Counsel  for  Plaintiff. 

Service  accepted  this day  of ,  1894. 

Y.  &  Y., 
Counsel  for  Defendant. 

(i)  Notice  must  be  served  on  opposing  party  or  his  counsel.    See 
55th  Rule  in  Equity. 


No.  379. 

Affidavit  of  Service. 

[If  counsel  fail  to  accept  the  sermce^  the  following  affidavit 
of  service  may  be  attached  to  a  copy  of  the  notice  served.^ 

State  of , 

County  of ,  ss. 

J.  R.  makes  oath,  and  says  that  he  served  notice,  of  which 
the  above  is  a  true  copy,  together  with  a  copy  of  the  bill  of 


PREWMINARY   INJUNCTION    PROCEEDINGS.  34I 

complaint  and  the  accompanying  affidavits,  hereto  an- 
nexed, on  C.  D.,  one  of  the  defendants  herein  named  [or,  on 
counsel  for  the  defendant,  as  the  case  may  be\ ,  in  the  city  of 

,  on  the day  of ,  1894.  J.  R. 

Subscribed  and  sworn  to  before  me  this day  of , 


1894.  J.  N., 

[^i?«/.]  [Official  Title.'] 

No.  380. 

Order  Overruling  Motion. 

[Caption.] 

This  cause  coming  on  to  be  heard  upon  motion  of  plain- 
tiff for  a  preliminary  injunction,  and  affidavits  in  behalf  of 
the  plaintiff,  as  well  as  in  behalf  of  the  defendant,  and  coun- 
sel for  the  respective  parties  having  been  heard,  and  the  same 
having  been  duly  considered  by  the  court,  it  is  hereby  order- 
ed, adjudged,  and  decreed  that  the  said  motion  be,  and  the 
same  is  hereby  overruled  at  the  plaintiff's  cost. 


No.  381. 

Order  to  Show  Cause  why  Injunction  should  not 
Issue,   etc. 

[Caption^ 

Upon  reading  the  bill  of  complaint  herein  and  the  affi- 
davits of  G.  R.  and  S.  P.,  and  on  motion  of  R.  X.,  solicitor  for 

the  plaintiff,  it  is  hereby  ordered  this day  of ,  1894, 

that  the  defendant  show  cause,  if  any  he  has,  before  the  judge 

of  said  court  at ,  in  the  city  of ,  district  of ,  on 

the day  of  ,  1894,  at  ten  o'clock  a.  m.,  or  as   soon 

as  counsel  can  be  heard,  why  the  injunction  should  not  issue 
pursuant  to  the  prayer  of  said  bill. 


No.  382. 

Order  for  Preliminary  Injunction  (i). 
[Caption^ 

This  cause  having  come  on    to  be  heard  on   motion  of 
plaintiff  for  a  preliminary  injunction,  and  on  reading  and 


342  PATENTS. 

filing  notices  of  motion  for  an  injunction  herein  and  proof  of 
service  thereof,  and  the  affidavits  on  behalf  of  the  plaintiff 
annexed  thereto,  and  on  reading  and  filing  affidavits  on 
behalf  of  the  defendant,  and  counsel  for  defendant  as  well 
as  for  the  plaintiff"  have  been  heard,  and  the  same  having 
been  duly  considered  by  the  court,  and  it  appearing  that 

letters  patent  of  the  United  States  No. ,  were  issued  in 

due  form  of  law  on  the day  of ,  for  an  improvement 

in  [hobby-horses],  to  A.  B.,  and  that  the  said  defendant,  C. 
D.,  has  infringed  on  the  rights  secured  by  the  aforesaid  let- 
ters patent  by  making  and  selling  to  others  [hobby-horses] 
embodying  the  invention  set  forth  in  said  patent  contrary  to 
form  of  the  statute  in  such  case  made  and  provided. 

Now,  therefore,  it  is  hereby  ordered,  adjudged,  and  de- 
creed that  a  preliminary  injunction  be  issued  pursuant  to 
the  prayer  herein,  strictly  commanding  and  enjoining  the 
defendant,  C.  D.,  his  clerks,  agents,  servants,  workmen,  and 
attorneys,  undex  the  pains  and  penalties  which  ma}^  fall  upon 
them,  and  each  of  them,  in  case  of  disobedience,  that  they 
forthwith,  and  until  the  further  order,  judgment,  and  decree 
of  this  court,  desist  from  making,  using,  and  selling  any 
[hobby-horses]  as  described  and  claimed  in  the  said  letters 
patent. 

(i)  As  to  injunction  generally,  see  Foster's  Fed.  Prac,  Sec.  205  et 
seq. ,  Beach's  Modern  Eq.  Prac,  753  et  seq.  When  preliminary  in- 
junctions are  grantable  in  patent  cases,  see  Robinson  on  patents.  Sec. 
1 1 69  et  seq.,  and  cases  cited  in  notes. 


No.  383. 

Preliminary  Injunction. 
\CaptionI\ 

The  President  of  the  United  States  to  C.  D.,  and  his  clerks, 

agents,  attorneys,  servants,  and  workmen,  greeting. 

Whereas,  it  has  been  represented  to  us  in  the  circuit  court 

of  the  United  States  for  the district  of ,  that  letters 

patent  No. were  issued  in  due  form  of  law  on  the 


PREI«IMINARY    INJUNCTION    PROCEEDINGS.  343 

day  of ,  for  an  improvement  in  [hobby-horses]  to  A.  B., 

and  that  you,  the  said  CD.,  have  infringed  the  rights  se- 
cured by  the  aforesaid  letters  patent  by  making  and  selling 
to  others  [hobby-horses]  embodying  the  invention  set  forth 
and  claimed  in  the  said  letters  patent,  contrary  to  the  form 
of  the  statute  in  such  cases  made  and  provided : 

Now,  therefore,  you,  the  said  C.  D.,  your  clerks,  agents, 
attorneys,  servants,  and  workmen  are  strictly  commanded  and 
enjoined  under  the  pains  and  penalties  which  may  fall  upon 
you,  and  each  of  you,  in  case  of  disobedience,  that  you  forth- 
with, and  until  the  further  order,  judgment,  and  decree  of 
this  court,  desist  from  making  and  selling  any  [hobby-horses] 
embodying  the  invention  of  said  letters  patent,  substantially 
as  described  and  claimed  in  the  said  letters  patent. 

[Add  teste.     See  No.  t^i.'] 

No.  384. 
Order  Refusing   Injunction  upon  Defendant  giving  Bond. 

[Caption^ 

And  now,  this  day  of  ,  1893,  the  above  cause 

having  come  on  to  be  heard  on  the day  of ,  on  mo- 
tion of  plaintiff  for  a  preliminary  injunction  in  accordance 
with  the  prayer  of  the  bill  in  the  above-entitled  cause,  and 
upon  affidavits  and  exhibits  filed  by  the  plaintiff  and  the  de- 
fendant, and  having  been  argued  by  counsel  for  the  respec- 
tive parties,  and  the  court  having  fully  considered  the  same, 
the  motion  is  overruled  at  the  cost  of  the  plaintiflf,  but  it  is 

ordered  that  the  defendant  give  bond  in  the  sum  of 

dollars  to  the  plaintiff  for  the  payment  of  any  profits  or 
damages  that  may  be  decreed  against  it  in  this  cause  for  the 
infringement  of  the  patent  sued  on  (between  the  date  of  this 
order  and  the  final  decree) ;  and  it  is  further  ordered  that  if 
the  defendant  fails  to  execute  and  file  with  the  clerk  of  this 
court  such  bond  within  twenty  days  from  the  date  of  this  en- 
try, plaintiff  may  renew  said  motion. 


344  PATENTS. 

It  is  further]ordered  that  the  defendant  keep  an  account  of 
all  sales  of  [chimneys]  manufactured  and  sold,  or  sold   by 

him  like  the  exhibits  marked  ,  to  be  produced  when 

called  for  by  the  court. 


No.  385. 
Bond  in  Lieu  of  Preliminary   Injunction. 

The  United  States  of  America, 
for  the District  of ,  ss. 

Know  all  men  by  these  presents,  that  C.  D.,  as  principal, 
and  E.  F.,  as  surety,  are  held  and  firmly  bound  unto  A.  B.  in 

the  sum  of dollars,  to  the  payment  of  which  they  bind 

themselves  and  each  of  them,  their  heirs,  executors,  and  ad- 
ministrators, firmly  by  these  presents.  Sealed  with  our  seals, 
and  dated  this day  of ,  1894. 

The  condition  of  the  above  bond  is  such,  that  whereas  in 
accordance  with  an  order  of  the  circuit  court  of  the  United 

States  within  and  for  the district  of ,  in  the  case 

wherein  A.  B.  is  plaintiff"  and  C.  D.  is  defendant,  the  said 

C.  D.  executed  a  bond  in  the  sum  of dollars,  to  pay  the 

plaintiff"  A.  B.  such  sum  as  may,  upon  final  hearing,  be 
decreed  in  his  favor  by  reason  of  infringement  of  the  patent 
sued  on  committed  between  the  date  of  the  order  of  said 
court  and  the  final  decree  herein,  in  the  said  cause. 

Now,  if  the  said  C.  D.  shall  abide  the  decisions  of  the  said 
court,  and  pay  all  moneys  and  costs  which  shall  be  attached 
against  him  in  this  cause,  then  these  presents  shall  be  void ; 
otherwise  to  remain  in  full  force. 

C.  D.     [Seal.'] 
E.  F.     [Seal.] 

[For  acknowledgment  and  justification  of  sureties  see  No.  36.] 


PRELIMINARY    INJUNCTION    PROCEEDINGS.  345 

No.  386. 

Motion  to  Dissolve  Preliminary  Injunction  (i). 

And  now  comes  the  defendant,  by  its  counsel,  and  moves 
the  court  to  dissolve  the  injunction  heretofore  issued  in  this 
cause,  on  the  ground  that  the  patent  sued  on  is  invalid  and 
void  in  view  of  the  exhibits  filed  herein  on  behalf  of  defend- 
ant, or  to  modify  the  injunction  so  as  not  to  prohibit  the  man- 
ufacturing and  selling  of  [hobby-horses]  by  C.  D.  under  and  in 

accordance  with  letters  patent  No. ,  granted  to  A.  B., 

,  1893,  for  the  reason  that  said  [hobby-horses]  do  not 

infringe  said  patent  sued  on.  R.  Y., 

Solicitor  for  Defendant, 
(i)  See  Robinson  on  Patents,  Sec.  12 13. 


No.  387. 

Order  Overruling  Motion  to  Dissolve. 

J[Captwn.'] 

This  case  coming  on  to  be  heard  this day  of ,  on 

motion  of  the  defendant  to  dissolve  the  preliminary  injunc- 
tion, and  counsel  having  been  heard  for  the  defendant  as  well 
as  for  the  plaintiflf,  and  due  consideration  having  been  had 
thereof,  it  is  ordered  that  the  said  motion  be  and  the  same 
is  hereby  overruled  at  the  defendant's  cost. 


No.  388. 

An  Order  Granting  Motion  to  Dissolve  Injunction  and 
Substituting  Bond  for  Injunction. 

[Oz//?b«.] 

This  cause  came  on  to  be  heard,  on  the day  of , 

on  the  motion  of  defendant  filed ,  1894,  to  dissolve  the 

preliminary  injunction  heretofore  granted  in  this  cause,  and 
counsel  having  been  heard,  and  the  same  having  been  duly 


346  PATENTS. 

considered  by  the  court,  it  is  ordered,  adjudged,  and  decreed 
that  the  said  injunction  be  set  aside,  provided  the  said  defend- 
ant within  five    days   give  a  good  and  sufficient   bond   in 

the  sum  of dollars,  to  pay  all  damages  and  profits  with 

reference  to  any  account  which  may  be  found  or  assessed 
against  the  said  defendant  by  reason  of  the  manufacture  and 
sale  of  [hobby-horses],  and  all  manufactures  and  sales  in  in- 
fringement of  plaintiff's  letters  patent  sued  on  in  his  said  bill, 

and  ^he  bond  shall  relate  back  to  the day  of ,  when 

the  order  for  injunction  was  first  made. 


CONTEMPT    PROCEEDINGS.  347 


CONTEMPT  PROCEEDINGS. 

No.  389. 

Motion  for  Rule  to  Show  Cause,  etc,  for  Contempt. 

[^Caption. ^ 

Now  comes  the  plaintiff  and  moves  the  court  for  a  rule 
upon  the  defendant  to  show  cause  why  he  should  not  be 
attached  for  contempt  for  violation  of  the  injunction  hereto- 
fore granted  in  this  cause,  and  for  reason  says  that  on  or 

about  the  day   of  ,  1894,  a  decree  was  rendered 

herein,  finding  the  letters  patent  sued  on  good  and  valid,  the 
property  of  plaintiff,  and  infringed  by  defendant  by  the  man- 
ufacture, use,  and  sale  of  [cradles]  known  and  designated  as 
[hobby-horses],  and  awarding  an  injunction  against  said  de- 
fendant, his  clerks,  agents,  servants,  and  workmen,  which 
decree  is  still  in  full  force  and  effect;  that  on  or  about  the 
day  of ,  a  writ  of  injunction  was  issued  in  accord- 
ance with  the  said  decree,  enjoining  said  defendant,  his  clerks, 
agents,  servants,  and  workmen  from  the  manufacture,  use,, 
and  sale  of  the  said  infringing  devices,  which  writ  of  in- 
junction was  duly  served  upon  the  defendant  on  or  before 

the  day  of ,  1894,  and  is  still    in  full  force  and 

effect ;  but  since  the  service  of  said  injunction,  defendant  and 
his  agents,  particularly  L.  K.,  in  violation  of  the  rights  of 
plaintiff  and  of  the  injunction  aforesaid,  have  continued  ex- 
tensively to  manufacture,  use,  and  sell  [cradles]  known  and 
designated  as  [hobby-horses],  embodying  the  invention,  the 
manufacture,  use,  and  sale  of  which  was  enjoined  as  afore- 
said, being  identical  in  construction  with  the  hobby-horse, 
adjudged  to  be  an  infringement  of  the  patent  sued  on,  to  the 
great  and  irreparable  damage  and  injury  of  the  plaintiff. 

A.  B. 
R.  X., 

Counsel  for  Plaintiff. 


348  PATENTS. 

No.  390. 

Order  Granting  Motion  for  Contempt. 

[Caption^ 

Upon  motion  of  plaintiff  it  is  ordered  that  a  rule  be  issued 
on  the  defendant,  C.  D.,  and  on  L.  K.,  to  appear  before  this 

court  at  lo  o'clock  a.  m.,  on  Saturday,  the day  of , 

1894,  to  show  cause  why  they  should  not  be  committed  for 
contempt  for  violation  of  the  injunction  heretofore  ordered 
and  issued  in  this  cause. 


No.  391. 

Rule  to  Show  Cause. 

[^Caption.'] 

The  President  of  the  United  States  of  America  to  C.  D. : 
You  are  hereby  cited  and  admonished  to  appear  before  the 

circuit  court  of  the  United  States  within  and  for  the  

district  of ,  on ,  the day  of ,  1894,  at 

o'clock  a.  m.,  and  show  cause,  if  any  you  have,  why  the 
said  C.  D.  should  not  be  attached  for  contempt  of  court  in 
failing  to  obey  the  order  of  injunction  heretofore  allowed 
and  issued  by  the  said  court,  and  served  upon  you. 

It  is  ordered  that  the  marshal  of  this  district  make  legal 
service,  and  due  return  of  this  rule,  on  or  before  the  appear- 
ance day  above  noted. 

[Add  teste.     See  form  No.  31.] 


No.  392. 

Return  on  above  Rule  by  Marshal. 

\Caption.'\ 

Received  this  writ  at ,  on  the day  of ,  1894, 

and  on  the  same  day,  at ,  I  served  the  within-named  C. 

D.  [6>r,  the  B.  K.  Manufacturing  Company,  a  corporation,  by 
C.  D.,  its  president],  with  a  true  copy  of  this  writ,  having  all 


CONTEMPT   PROCEEDINGS.  349 

the  indorsement  thereon,  by  handing  it  to  said  person  per- 
sonally [or  say,  left  at  his  regular  place  of  business,  at  No. 

, street, ].  H.  C, 

United  States  Marshal  for  the 

District  of 

Fees. 

One  service, 

One  copy    •  

miles,    


No.  393. 

Order  Adjudging  Defendant  Guilty  of  Contempt,  and 

Fining  him. 
[Caption]. 

Upon  the  return  of  the  rule  to  show  cause  heretofore  en- 
tered, and  it  appearing  that  service  thereof  has  been  had  on 
said  defendant,  C.  D.,  and  upon  h.  K.,  by  delivering  a  copy 
thereof  to  the  said  C.  D.,  and  counsel  having  been  heard  in 
his  behalf,  the  court  finds  the  said  defendant  is  in  contempt 
of  the  injunction  heretofore  issued  herein,  and  orders  that 

said  defendant  pay dollars  fine  and  the  costs  of  this 

proceeding,  and  that  if  the  same  be  not  paid  within  five 

days  from  this  date,  viz.,  the day  of ,  1894,  the  said 

C.  D.  be  committed  to  the  jail  of county,  in  the  state  of 

,  and  confined  therein  until  the  same  be  paid. 


No.  394. 

Order  Adjudging  Party  Guilty  of  Contempt.   (Another 

Form.) 

[Caption.'] 

A  motion  for  attachment  for  contempt  herein  having  come 
on  for   further  hearing  on  the  question  of  punishment  or 

terms,  on  this day  of ,  and  R.X.,  Esq.,  having  been 

heard   for   the  motion,  and    R.   Y.,  Esq.,  opposed :      Now, 
therefore,  it  is  hereby  ordered  and  decreed  that  the  defend- 


350  PATENTS. 

ant  is  adjudged  to  have  committed  the  contempt  alleged,  and 
that  he  pay,  as  a  fine  therefor,  the  amount  of  all  costs, 
charges,  and  disbursements  whatsoever  suffered,  borne,  or 
incurred  by  the  plaintifif  by  reason  of,  or  on  account  of,  the 
said  motion,  and  that  the  question  of  the  amount  of  said  fine 
be  submitted  to  this  court  on  affidavits,  and  without  argu- 
ment, as  follows :     The  plaintiff"  to  serve  his  affidavits  on  the 

solicitor  for  the  defendant  on  or  before  Friday, ;  that 

defendant  serve  his  replying  affidavits  on  counsel  for  plain- 
tiff" on  or  before  Tuesday, ,  and  that  plaintiff"  have  the 

right  to  reply ;  and  that  all  affidavits  be  filed  on  or  before 
Friday, -. 


No.  395. 

Order  Pining  Defendant  for  Contempt. 

[^Caption.l 

This  motion  having  been  heard  on  the day  of 


,  on  affidavits  and  argument  by  counsel  for  the  respec- 
tive parties,  and  thereupon  an  order  having  been  duly  made 
that  it  be  referred  to  S.  M.  to  ascertain  the  fact  of  said  in- 
fringement, if  the  same  be  so,  and  report  his  finding  to  this 
court,  and  upon  the  coming  in  of  the  report  of  said  referee, 
and  hearing  counsel  for  the  respective  parties  in  support 
thereof  and  in  opposition  thereto,  said  report  was  confirmed  ; 
and  it  was  then  further  ordered  that  the  plaintiff  file  with 
the  court,  and  serve  copies  on  defendant,  affidavits  showing 
the  expenses  incurred  in  the  prosecution  of  this  second  at- 
tachment for  contempt ;  that  defendant  file  and  serve  answer- 
ing affidavits,  and  that  plaintiff  may  reply  thereto;  and  an 
amended  order  and  the  affidavit  of  C.  D.,  the  defendant,  exe- 
cuted on  the day  of ,  having  been  filed  in  reply  to 

said   plaintiff's   affidavit,  it   is,  upon    consideration   thereof, 

ordered  that  the  defendant  pay  into  court  the  sum  of 

dollars,  as  set  forth  in  the  affidavit  of  B.  H.,  executed 


herein  on  the day  of ,  and  the  further  sum  of 


CONTEMPT   PROCEEDINGS.  351 

dollars,  as  set  forth  in  the  affidavit  of  V.  F.,  executed  herein 

on  the day  of ,  amounting  altogether  to  the  sum 

of dollars,  a  fine  for  said  second  contempt,  within  thirty 

days  from  the  date  of  the  entry  of  this  order,  to  wit,  the 

day  of ;  and  that  if  not  paid,  the  defendant  stand  com- 
mitted till  it  be  paid,  and  that  when  paid  it  be  paid  over  to 
the  plaintiff"  in  reimbursement. 


No.  396. 

Entry  of  Distribution. 

Upon  motion  of  J.  E.  B.,  assistant  United  States  attorney, 
and  it  appearing  to  the  court  that  the  defendant  C.  D.  has 
paid  into  the  registry  the  fine  for  contempt  in  this  case, 
amounting  to dollars,  and  the  court  proceeding  to  dis- 
tribute the  same,  orders  and  directs  the  said  sum  to  be  paid 

to  the  assistant  treasurer  of  the  United  States  at ,  for 

the  use  of  the  United  States. 


353  PATENTS. 


DECREES,  ETC. 

No.  397. 
Order  for  Decree  Pro  Confesso  (i). 

The  bill  of  complaint  having  been  filed  in  the  above-enti- 
tled case,  and  the  subpoena  issued  herein  having  been  returned 

on  the  day  of ,  1894,  and  it  appearing  therefrom 

that  the  said  subpoena  was  duly  served  upon  the  above-named 

defendant  on  the  day  of ,  1894,  and  it  appearing 

that  the  said  defendant  has  failed  to  appear  or  plead,  answer 
or  demur  to  the  bill  of  complaint  herein,  and  is  in  default 
therefor;  now  comes  the  plaintiff  by  his  counsel  and  enters 
an  order  that  the  bill  of  complaint  herein  be  taken  pro  con- 
fesso. R.  X., 

Solicitor  and  of  Counsel  for  Plaintiff. 

(i)  This  order  is  filed,  as  a  matter  of  course,  with  the  clerk.     i8th 
Rule  in  Equity. 


No.  398. 

A  Decree  Pro  Confesso. 
\Caption^ 

This  cause  having  been  brought  on  for  hearing,  and  it 

appearing  that  the  defendant  was  duly  served  with  process 

on  the  day  of ,  1894 ;  that  the  defendant   having 

failed  to  appear  or  to  plead,  answer,  or  demur,  and  an  order 

for  a  decree  pro  confesso  was  duly  entered  on  the day  of 

,  1894;  that  more  than  thirty  days  have  passed  since  the 

entry  of  said  order;  the  court  thereupon  adjudges  and  decrees 

that  the  plaintiff  is  the  sole  and  exclusive  owner  of  the  letters 

patent,  No. ,  set  forth  in  the  bill  of  complaint,  granted  to 

A.  B.  for  improvement  in ,  and  dated  the day  of 


DECREES,  ETC.  353 

,  1888;  that  the  plain tiflf  is  also  the  owner  of  the  entire 

right  to  recover  damages  and  profits  from  all  infringers  of 
said  letters  patent ;  that  said  letters  patent  are  good  and  valid, 
and  have  been  infringed  by  the  defendant  herein,  by  the 
manufacture,  use,  and  sale  of embodying  said  inven- 
tion, and  among  others  known  and  designated  as . 

It  is  further  ordered,  adjudged,  and  decreed  that  the  de- 
fendant, the  said  C.  D.,  his  agents,  servants,  and  workmen, 
be  and  hereby  are  enjoined  for  the  remainder  of  the  term  of 
the  life  of  said  letters  patent  from  further  infringing  the  same, 
and  from  manufacturing,  using,  or  selling  the  said  infringing 
,  or  any or containing  or  embodying  the  inven- 
tion or  inventions  embraced  in  said  letters  patent;  that  the 
plaintiff  recover  from  said  defendant  as  well  the  damages 
sustained  in  or  by  reason  of  said  infringement  as  the  profits, 
gain,  and  saving  made  or  realized  by  the  defendant  ^thereby, 
together  with  the  costs  herein  to  be  taxed,  and  that  this 
cause  be  referred  to  B.  R.,  Esq.,  as  special  master,  to  take, 
state,  and  report  an  account  of  damages  and  profits  under 
and  in  accordance  with  this  decree. 


No.  399. 

Motion  to  Set  Aside  Decree  Pro  Confesso. 

[Caption^ 

And  comes  the  defendant  and  moves  this  court  to  set  aside 

the  decree  entered  herein  on  the day  of ,  1894,  and 

for  leave  to  appear  and  answer  the  bill  of  complaint. 

C.  D., 
by  X.  &  X.,  his  Attorneys. 


[Caption!] 

See  Nos.  268  to  270. 


No.  400. 
Decree  Dismissing  Bill. 


354  PATENTS. 

No.  401. 

Interlocutory  Decree  Sustaining  Patent. 

l^Captzon.'] 

This  cause  came  on  to  be  heard  on  the day  of , 

1894,  upon  the  pleadings  and  proofs,  and  was  argued  by- 
counsel  as  well  for  the  plaintiff  as  for  the  defendant,  and  the 
pleadings  and  proofs  having  been  duly  considered,  it  is  here- 
by ordered,  adjudged,  and  decreed  as  follows : 

That  the  plaintiflF  is  the  sole  and  exclusive  owner  of  the 
letters  patent  set  forth  in  said  bill  of  complaint  [coniinue  as 
in  No,  398]. 

No.  402. 

Perpetual  Injunction. 
[Caption!] 

The  President  of  the  United  States  of  America  to  C.  D.,  his 
servants,  agents,  and  workmen.  Greeting: 

Whereas  it  has  been  represented  to  us  in  our  circuit  court 

of  the  United  States  for  the circuit  for  the district 

of ,  that  letters  patent  of  the  United  States  were  issued 

to  A.  B.  for  improvement  in  ,  dated  the  day  of 

,  1888,  No. ,  of  which  the  plaintiff  is  the  sole  and 

exclusive  owner,  and  that  the  plaintiff  is  also  the  owner  of 
all  rights  to  recover  damages  and  profits  from  all  infringers 
of  said  letters  patent  (as  well  prior  as  subsequent  to  the 
assignment  of  said  letters  patent  to  plaintiff) ;  that  said  letters 
patent  are  good  and  valid,  and  have  been  infringed  by  the 

defendant  herein  by  the  manufacture,  use,  and  sale  of 

embodying  said  invention,  and,  among  others,  by known 

and  designated  as . 

Now,  therefore,  we  do  strictly  command  and  enjoin,  you, 
the  said  C.  D.,  your  servants,  agents,  and  workmen,  for  the 
remainder  of  the  term  of  the  life  of  said  letters  patent  from 
further  infringing  the  same,  and  from  manufacturing,  using, 

and  selling  the  said  infringing ,  or  any containing 

or  embodying  the  invention  embraced  in  said  letters  patent. 

[Add  teste.     See  No.  31.] 


DECREES,  ETC.  355 

No.  403. 

Master. 

After  an  interlocutory  decree  sustaining  a  patent,  and  de- 
claring the  defendant's  device  an  infringement  of  the  patent 
sued  on,  the  court  usually  appoints  a  special  master,  to  whom 
the  case  is  referred,  to  ascertain  and  report  damages  and 
profits  on  account  of  such  infringement.  If  a  clerk  of  a 
United  States  Court  is  appointed,  a  special  reason  for  such 
appointment  must  be  assigned.  See  Vol.  I,  Supplement  to 
R.  S.,  Chap.  183,  Sec.  2. 

For  forms  of  Notices,  Oaths  of  Master,  etc.,  see  Nos.  275 
to  281. 


No.  404. 

Master's  Report. 

To  the  Honorable  Judges  of  the  Circuit  Court  of  the  United 
States  for  the District  of : 

The  undersigned,  R.  C,  appointed  special   master  in  the. 

above-entitled  cause,  under  a  decree  entered  therein  the 

day  of ,  1894,  respectfully  submits  the  following  report: 

Said  decree  directs  the  master  to  "ascertain,  state,  and 
report  an  account  of  the  profits,  gains,  and  advantages  which: 
have  accrued  to  defendant,  and  the  damages  sustained  by 
plaintiff,  by  reason  of  infringement  of  the  patent  sued  on ;  also 
the  number  of  said  stop-valves  made  and  also  the  number 
sold  by  said  defendant  since  the day  of ,  1885." 

The  master  finds : 

Fz'rsL  That  the  defendant  manufactured  during  the  time 
embraced  in  this  inquiry  2,000  of  said  valves  of  difierent 
sizes,  as  follows:  [^kere  make  an  itemized  statement  of  the  num- 
ber of  valves  made  in  each  style\^  of  these  1,975  have  been 
sold,  and  25  are  on  hand. 

Second.  That  the  plaintiflf  has  granted  licenses  to  L.  M., 
dated ;  to  S.  H.,  dated ;  to  H.  B.,  dated ,  for  a 


356^  PATENTS. 

uniform  royalty  of  20  cents  per  valve,  and  that  the  plaintiff 
produced  testimony  to  show  settlements  with  other  infringers, 
namely,  \here  state  the  names  of  such  infringers  infull\  on  a 
basis  of  a  royalty  of  20  cents  per  valve,  and  the  master  finds 
that  the  said  20  cents  per  valve  is  an  established  royalty,  and, 

Third.  That  upon  this  basis  the  amount  of  damages  due 
from  the  defendant  to  the  plaintiff  is  found  to  be  20  cents 
per  valve  for  2,000  valves,  amounting  to  four  hundred  dollars. 

The  testimony  taken  by  the  master,  and  the  licenses  and 
other  exhibits,  are  filed  herewith. 

All  of  which  is  respectfully  submitted.  R.  C, 

Special  Master. 

Dated  this day  of ,  1894. 


No.  405. 

Master's  Report.     (Another  Form.) 

\Caption^ 
\Proceed  as  in  No.  404  to  '''' Second ^^''  and  continue  as  follows ;] 

Second.  There  is  no  established  royalty  or  license  fee  for 
the  manufacture  of  said  valves  that  appears  in  the  testimony 
before  your  honors  or  in  the  testimony  produced  before  this 
master. 

Third.  That  of  these  valves,  500  cost  50  cents  each,  and 
500  one  dollar  each,  which  is  an  average  cost  of  75  cents  each. 
The  cost  of  the  remainder  of  the  valves  does  not  appear,  and 
75  cents  is  therefore  assumed  as  the  cost  of  all  the  valves 
made  by  the  defendant,  making  the  total  cost  of  all  the  valves 
sold,  $1,481.25. 

The  total  amount  received  for  the  valves  by  the  defendant, 
as  appears  by  defendant's  books,  was  $1,962.50;  leaving  a 
net  profit  on  valves  sold,  $481.25. 

Fourth.  That  there  appears  to  be  no  damage  sustained 
by  plaintiff  other  than  the  loss  of  profits  on  the  valves  sold 
as  before  mentioned,  and. 


DECREES,  ETC.  357 

Fifth.     The  master  finds  that  there  is  due  from  the  de- 
fendant to  the  plaintiff  the  sum  of  $481.25. 

The  testimony  taken  by  the  master  is  filed  herewith. 
All  of  which  is  respectfully  submitted.  R.  C, 

Special  Master. 
Dated  this day  of ,  1894. 


No.  406. 

Master's  Report.    (Another  Form.) 
\Caption^ 

To  the  Judge  of  the  Circuit  Court  of  the  United  States  for 

the District  of : 

The  undersigned,  R.  C,  appointed  special  master  under 
a  decree  entered  in  above  case  April  9,  1887,  a  certified 
copy  of  which  is  hereto  attached,'_respectfully  submits  the 
following  report: 

By  said  decree  the  master  is  directed, 

First.  To  take  and  report  to  the  court  an  account  of  the 
profits  which  the  defendants  have  received,  or  which  have 
arisen  or  accrued  to  them  from  the  manufacture,  use,  or  sale 
of  said  improvement,  or  from  said  infringement,  and 

Second.  To  ascertain  and  report  the  damages  which  the 
plaintiff  has  sustained  thereby  since  August  26,  1879. 

This  is  an  action  for  the  infringment  of  a  patent  band  for 
wheel  hubs,  and  in  the  decision  handed  down  on  a  rehearing 
of  the  cause  Sept.  30,  1887,  the  court  says: 

"  The  hub  in  evidence  manufactured  by  defendants  shows 
a  band  having  the  overhanging  lip  at  its  inner  side  and  the 
internal  vertical  or  substantially  vertical  shoulder.  The 
decree  will  stand,  but  the  accounting  will  be  limited  in  ac- 
cordance with,  and  the  injunction  modified  to  conform  to, 
this  opinion." 

This  decision  of  the  court  limits  the  master  in  this  account- 
ing to  the  particular  form  of  band  therein  described,  and  the 
accounting  is  made  accordingly. 


358  PATENTS. 

It  is  agreed  between  the  parties  that  2,198  sets  of  wheel 
hubs  with  bands  were  made  between  January,  1879,  ^^^ 
February  13,  1885,  but  only  a  part  of  the  bands  so  used  were 
of  the  device  described  in  the  above-quoted  decision  of  the 
court.  There  is  nothing  in  the  evidence  to  show  how  many 
of  the  hubs  so  made  contained  the  infringing  device. 
1  Plaintiff  endeavors  to  show  an  established  license  fee,  set- 
ting  up  three  licenses  for  the  sale  of  the  patent  device,  but 
even  if  that  were  a  sufficient  number  to  establish  a  general 
license  fee,  an  examination  of  said  license  shows  such  condi- 
tions as  remove  them  from  the  category  of  general  licenses 
for  the  sale  of  these  specific  devices  in  question.  For  ex- 
ample : 

■  I.  A  license  was  granted  by  plaintiff  to  P.  &  D.  to  use 
the  infringing  device,  but  it  was  coupled  with  other  privi- 
leges and  advantages,  viz.: 

First.  It  was  conditioned  upon  plaintiff  going  into  and 
remaining  in  the  employ  of  his  licensee. 

Second.  It  covered  all  wheel  patents  owned  by  plaintiflf, 
but  did  not  mention  the  device  in  question. 

Third.  The  fee  for  the  use  of  all  plaintiff's  patents  should 
be  fixed  by  mutual  agreement,  but  should  never  exceed  fifty 
cents  a  set. 

Fourth.  That  such  license  should  include  the  right  to 
use  any  and  all  patents  for  all  improvements  which  plaintiff" 
might  subsequently  make. 

Fifth.  That  the  license  should  be  exclusive  so  long  as  the 
plaintiff  remained  in  his,  licensee's,  employ. 

II.  A  license  was  granted  to  P.  &  B.,  but  it  also  included 
First.     The  right  to  use  three  different  patents. 

Second.  The  right  to  use  any  and  all  improvements  which 
plaintiff  might  subsequently  use  and  patent. 

Third.    It  binds  the  licensee  to  make  no  competing  wheels. 

Fourth.  It  is  measurably  exclusive,  in  that  plaintiff  agrees 
to  limit  his  license  to  a  specific  number. 

III.  To  the  W.  Wheel  Co.  which  provided. 


DECREES,  ETC.  359 

First.  That  it  should  cover  two  patents  and  any  other 
which  plaintiff  might  subsequently  procure. 

Second.  That  plaintiff  should  not  license  more  than  six 
parties  in  the  United  States,  except  on  failure  of  such  six  par- 
ties to  supply  the  demands  of  the  trade. 

Counsel  claim  that  such  a  license  fee  is  established  by  them 
as  constitutes  a  measure  of  damages  to  govern  the  account- 
ing in  this  reference,  but  the  only  uniformity  in  these  licenses 
is  the  fee,  which  was  50  cents  per  set  of  four  wheels,  ahd  they 
lack  every  other  element  necessary  ^to  establish  a  general 
license  fee. 

Counsel  for  plaintiff  also  claims  that  all  the  wheel  hubs 
made  by  defendants  contain  a  band  similar  in  principle  to 
the  patented  devices,  and,  therefore,  that  plaintiff  is  entitled 
to  compensation  for  all  the  wheels  made  by  defendants  dur- 
ing said  period.  That  portion  of  the  decision  of  the  court 
already  quoted  seems  to  furnish  a  sufl&cient  answer  to  this 
claim.  The  master  can  not  consider  any  other  device  than 
that  which  has  "the  overhanging  lip  at  its  inner  side  and 
the  internal  vertical  or  substantially  vertical  shoulder." 
The  evidence  shows  that  some  of  the  hubs  made  by  defend- 
ants contain  a  half-oval  band,  some  a  square,  and  some  a  V 
shaped  band,  but  how  many  of  each  kind  were  made  does 
not  appear.  A  sample  of  each  style  of  band  so  used  was 
exhibited  to  the  master,  and  all  are  filed  as  exhibits  in  this 
accounting. 

The  master  finds: 

First.  There  is  no  established  license  fee  for  the  use  of 
the  said  patented  device  which  can  be  assumed  as  a  meas- 
ure of  damages  in  this  accounting. 

Second.  It  is  not  shown  how  many  wheel  hubs  containing 
said  patent  device  were  made  by  defendants. 

Third.  In  the  absence  of  testimony  showing  the  number 
of  wheel  hubs  containing  said  patented  device  made  by  de- 
fendants the  master  has  no  recourse  but  to  find  nominal 
damages  due  from  said  defendants  to  plaintiff,  and  he  there- 
fore so  finds. 


360  PATENTS. 

A  draft  report,  similar  in  all  respects  to  the  foregoing, 
was  submitted  to  counsel  for  both  parties  hereto,  thus  giv- 
ing them  an  opportunity  to  except  to  the  findings  before 
filing.  Counsel  for  plaintiff  filed  exceptions,  which  are 
hereto  attached. 

The  master  has  re-examined  the  testimony  bearing  upon 
the  questions  involved  in  his  findings,  and  overrules  said 
exceptions. 

The  testimony  taken  before  the  master  and  the  depo- 
sitions and  exhibits  offered  at  the  hearings  are  filed  here- 
with. 

All  of  which  is  respectfully  submitted.  R.  C, 


Dated  this day  of ,  1894 


Special  Master. 


No.  407. 

Final  Decree. 
[Caption!] 

This  cause  having  come  on  to  be  heard  upon  the  report  of 
B.  R.,  Esq.,  as  special  master,  to  whom  it  was  referred  to 
take,  state,  and  report  an  account  of  damages  and  profits  in 
accordance  with  the  interlocutory  decree  herein,  which  re- 
port is  dated  the day  of ,  1894,  and  also  upon  ex- 
ceptions taken  to  the  said  report  on  the  part  of  the  plaintiff, 
and  also  on  the  part  of  the  defendant,  and  the  said  cause 
having  been  argued  by  counsel  for  the  respective  parties, 
and  due  deliberation  had  thereon, 

It  is  ordered,  adjudged,  and  decreed  that  the  said  defend- 
ant pay  to  the  said  plaintiff  the  sum  of dollars,  which 

is  the  amount  found  by  the  special  master,  as  stated  in  his 
report  above  referred  to,  to  be  due  from  the  defendant  to  the 
plaintiff. 

It  is  ordered,  adjudged,  and  decreed  that  the  said  defend- 
ant pay  to  the  said  plaintiff  his  costs  in  said  suit  to  be  taxed, 
and  that  said  plaintiff  have  execution  for  such  costs,  and  for 
the  sums  above  decreed,  to  be  paid  to  said  plaintiff. 


ACTIONS   AT   LAW   IN    PATENT   CASES.  361 


ACTIONS  AT  LAW  IN  PATENT  CASES. 

No.  408. 

Declaration  for  Infringement   after   Expiration  of  Patent. 

Circuit  Court  of  the  United  States  for 

the District  of . 

A.  B.,  Plaintiff,        -.  ^^  ^aw, 

C.  D.,  Defendant.    J  Trespass  on  the  Case  (i). 

A.  B.,  of  the  city  of ,  state  of ,  who  is  a  citizen 

of  said  state  of  ,  and  of  the   United  States,  plaintiff, 

complains  of  C.  D.,  of  the  city  of ,  state  of ,  who  is 

an  inhabitant  of  the  district  of ,  defendant,  of  a 

plea  of  trespass  on  the  case,  and  says: 

That  A.  B.,  of  the  city  of ,  state  of  ,  was  a  cit- 
izen of  the  United  States  before  and  at  the  time  of  his  appli- 
cation for  the  letters  patent  hereinafter  mentioned;  that  he 
was  the  true,  original,  and  first  inventor  of  a  certain  new 
and  useful  invention  fully  described  in  the  specification  of 
the  letters  patent  hereinafter  mentioned,  for  an  improvement 
in  sewing-machines,  and  which  was  not  known  or  used  in 
this  country,  and  not  patented  or  described  in  any  printed 
publication  in  this  country,  or  any  foreign  country,  before 
his  invention  thereof,  and  was  not  in  public  use,  or  on  sale, 
in  the  United  States  more  than  two  years  prior  to  his  appli- 
cation for  letters  patent  of  the  United  States  therefor  (2). 

And  that,  on  the day  of ,  1876,  letters  patent  of 

the  United  States,  No. ,  were  issued  upon  the  applica- 
tion of  said  A.  B.  for  said  invention,  in  due  form  of  law,  and 
delivered  to  the  said  A.  B.,  in  the  name  of  the  United  States 
of  America,  and  under  the  seal  of  the  patent  office  of  the 
United  States,  and  was  signed  by  the  secretary  of  the  inte- 


362  PATENTS. 

rior  of  the  United  States,  and  countersigned  by  the  commis- 
sioner of  patents  (3) ;  and  that  said  letters  patent  did  grant 
to  said  A.  B.,  his  heirs,  or  assigns,  for  the  term  of  seventeen 

years  from  the day  of — — ,  1876,  the  exclusive  right  to 

make,  use,  and  sell  the  said  invention  throughout  the  United 
States  and  the  territories  thereof. 

And  the  plaintiflf  further  says,  that  always  hitherto,  from 
the  date  of  said  letters  patent  up  to  the  expiration  of  the  said 

letters  patent,  No. ,  he  has  vended  to  others  the  right  to 

make  and  use  sewing-machines  embodying  said  invention, 
to  his  great  advantage  and  profit. 

Yet  the  defendant,  well  knowing  the  premises,  did  con- 
trive to  injure  the  plaintiff  heretofore,  to  wit :  on  and  after 

the day  of ,  1885,  and  up  to  and  on  the day 

of ,  1890,  and  during  and  within  the  term  of  seventeen 

years  mentioned  in  said  letters  patent,  and  after  the  granting 
of  the  same,  and  before  the  bringing  of  this  suit  within  the 

district  of  the  United   States,  and   elsewhere   in   the 

United  States,  unlawfully,  wrongfully,  and  injuriously,  and 
with  intent  to  deprive  the  plaintiff  df  the  rights  which  he 
might,  and  otherwise  would,  have  derived  from  the  sale  of 
rights  to  make  and  use  sewing-machines  embodying  said 
invention,  and  without  the  license  of  the  plaintiff,  and  against 
the  will  of  the  said  plaintiff,  did  make,  use,  and  sell,  and  caused 
to  be  made,  used,  and  sold,  sewing-machines  which  contained 
and  employed  substantially  the  invention  covered  by  the 
said  letters  patent  sued  on  herein  in  infringement  of  the  said 
exclusive  rights  secured  to  A.  B.  by  the  letters  patent  afore- 
said, contrary  to  the  statute  of  the  United  States  in  such 
cases  made  and  provided,  whereby  the  plaintiff  has  been, 
and  is,  greatly  injured,  and  has  been  deprived  of  large  roy- 
alties which  he  might,  and  otherwise  would,  have  derived 
from  the  sale  of  rights  to  make  and  use  such  sewing-ma- 
chines, and  has  sustained  actual  damages  thereby  to  the 
amount  of dollars. 

Wherefore,  by  force  of  the  statutes  of  the  United  States, 
the  right  of  action  has  accrued  to  the  said  plaintiff  to  recover 


ACTIONS   AT   LAW   IN   PATENT   CASES.  363 

the  said  actual  damages,  and  such  additional  amount  not  ex- 
ceeding in  all  three  times  the  amount  of  such  actual  dam- 
ages as  the  court  may  see  fit  to  adjudge  and  order,  besides 
the  costs. 

And  yet  the  defendant,  though  often  requested  so  to  do, 
has  never  paid  same  nor  any  part  thereof,  but  has  refused 
and  still  refuses  so  to  do. 

Wherefore  plaintiff  prays  for  judgment  in  the  sum  of 

dollars,  and  for  his  costs.  R.  X., 

Attorney  for  Plaintiff, 

(1)  R.  S.,  Sees.  4919  and  4920;  Walker  on  Patents,  Sec.  418,  ^/  seg.; 
Robinson  on  Patents,  Sec.  949,  et  seg.     See  also  Nos.  i  to  4. 

(2)  Gray  vs.  James,  i  Peters,  Circuit  Ct.  Rep.,  482  ;  Walker  on  Pat- 
ents, Sec.  425. 

(3)  R.  S.,  Sec.  4883 ;  Cutting  vs.  Meyers,  4  Wash.,  222.  See  also 
No.  7. 


No.  409. 

Verification  to  Declaration  or  Plea. 

United  States  of  America, 

District  of ,  ss. 

On  this day  of ,  personally  appeared  before  me 

A.  B.,  who  makes  solemn  oath  that  the  facts  set  forth  in  the 
above  declaration  \or  plea]  are  true,  to  the  best  of  his  knowl- 
edge and  belief.  R.  C, 

Clerk. 

No.  410. 

Plea.     General  Issue  (i). 

\Captiony  as  in  No.  408.] 

And  the  defendant,  by  his  attorney,  R.  X.,  comes  and  de- 
fends the  wrong  and  injury  when,  etc.,  and  says  that  he  is 
not  (^r,  they  are  not,  or  any  or  either  of  them)  guilty  of  the 
said  supposed  grievances  above  laid  to  his  charge,  or  any  or 
either  of  them,  or  any  part  thereof,  in  manner  and  form  as 


364  PATENTS. 

the  said  plaintiff  has  above  complained  against  him,  and  of 
this  the  defendant  puts  himself  upon  the  country. 

S.Y., 
Attorney  for  Defendant. 
[  Verification^  as  in  No.  409.] 

(i)  All  the  ordinary  defenses  in  patent  suits  maybe  set  up  and 
proved  under  the  general  issue,  except  those  specially  mentioned  in 
Sec.  4920  of  the  R.  S.  of  the  United  States.  Of  these  defenses  no- 
tice must  be  served  upon  the  plaintiff  in  writing.  The  pleadings 
in  law  and  equity  differ,  in  that  all  the  defenses  relied  upon  must  be 
stated  in  the  answer  in  equity,  but  need  not  be  so  stated  in  a  pleading 
at  law,  except  as  specially  provided  in  the  statute  above  referred  to. 

R.  S.,  4920 ;  See  Robinson  on  Patents,  Sees.  993  and  999,  and  notes 
and  references  cited  ;  N.  Y.  Phannacal  Co.  w.  Tilden,  21  Blatchf;  191, 
14  Fed.  Rep.,  740 ;  Judson  vs.  Bradford,  16  O.  G.,  3  B.  and  A.,  539. 


No.  411. 

Plea  and  Notices  of  Special  Matter  (i). 

[Proceed  as  in  No.  410  to  the  signature^  and  insert  the  fol- 
lowing ;] 

And  the  defendant  gives  the  following  notices  in  writing 
of  special  matter  to  the  plaintiff  thirty  days  before  the  trial : 

The  plaintiff  will  take  notice  that  the  above-named  de- 
fendant will  prove,  upon  the  trial  of  this  cause,  in  bar  of  the 
said  plaintiffs  action,  as  follows,  to  wit : 

First.  That  for  the  purpose  of  deceiving  the  public,  the 
description  and  specification  filed  by  A.  B,,  the  patentee 
aforesaid,  in  the  patent  office  of  the  United  States,  whereon 
the  letters  patent  sued  on  were  granted,  was  made  to  con- 
tain less  than  the  whole  truth  relative  to  his  invention,  or 
discovery  [<?r,  more  than  is  necessary  to  produce  the  desired 
effect  which  was  intended  to  be  produced  by  the  said  inven- 
tion, or  discovery]  in  the  following  particulars,  viz.:  \here 
state  the  particulars^ 

Second.  That  the  said  patentee  surreptitiously  and  un- 
justly obtained  the  patent  sued  on  for  that  which  was  in  fact 


ACTIONS   AT   LAW   IN    PATENT   CASES.  365 

invented  by  one  J.  R.,  in  the  city  of ,  state  of ,  be- 
fore the  alleged  invention  of  A.  B.,  and  that  the  said  J.  R. 
was  using  reasonable  diligence  in  adapting  and  perfecting 
his  said  invention. 

Third.  That  the  said  invention  and  device  was  not  new 
when  produced  by  the  said  A.  B.,  and  that  substantially  the 
same  invention  and  device  is  shown  in  printed  publications 
and  letters  patent  of  the  United  States  granted  prior  to  the 
application  of  the  said  A.  B.  for  a  patent,  as  follows,  to  wit: 

In  letters  patent,  No. ,  granted  G.  M.,  May  i6,  1870; 

In  letters  patent.  No. ,  granted  S.  S.,  June  15,  1872. 

And  on  page  104  of  the  "  Universal  Dictionary  of  Mechan- 
ical Arts,"  published  in  Paris,  France,  by  Louis  Dumas,  at 
No. Rue  St.  Jacques,  in  1864,  etc.,  etc. 

Fourth.  That  he  was  not  the  original  inventor  or  discov- 
erer of  any  material  and  substantial  part  of  the  thing  pat- 
ented in  letters  patent  No. ,  herein  sued  on,  but  that  the 

said  invention  and  every  material  and  substantial  part  thereof 

was  invented  by  one  S.  M.  at ,  in  the  state  of ,  who 

now  resides  at ,  in  the  state  of ,  and  that  the  same 

was  known  to  be  invented  by  the  said  S.  M.  as  early  as  the 
day  of ,  1870,  and  prior  to  the  time  when  it  is  al- 
leged in  the  declaration  that  the  same  was  invented  and  dis- 
covered by  A.  B.,  patentee  as  aforesaid. 

Fifth.     That  the  alleged  invention  mentioned  in  letters 

patent  No. ,  sued  upon  herein,  was  in  public  use  and  on 

sale  in  this  country  more  than  two  years  before  the  applica- 
tion of  the  said  A.  B.  for  a  patent  therefor,  instances  of 
which  said  use  and  sale  are  more  particularly  specified  as 
follows : 

Known  to  and  used  by  J.  M.,  at  Cincinnati,  Ohio,  in  May, 
1865,  which  said  use  is  known  to  J.  M.  and  L.  N.,  who  re- 
side in  Cincinnati,  Ohio,  and  to  others. 

Sixth.  That  the  alleged  invention  mentioned  in  letters 
patent  No. ,  sued  upon  herein,  had  been  previously  in- 
vented and  discovered  by  one  S.  L.,  at ,  in  the  state  of 


366  PATENTS. 

,  and  thereafter  and  before  the  time  when  it  is  alleged 


in  the  declaration  the  same  was  invented  and  discovered  by 

A.  B.,  patentee  as  aforesaid ;   and  as  early  as  the day  of 

,  1865,  the  same  was  by  the  said  S.  L.  abandoned  to  the 

public,  and  was,  with  the  consent  and  allowance  of  the  said 
S.  Iv.,  in  public  use,  and  used  [<9r,  publicly  offered  for  sale  and 
sold]  at  Akron,  Ohio,  by  J.  S.  &  Co.,  which  said  use  [or,  expo- 
sition for  sale  and  sale]  is  known  to  J.  S.,  president  of  the  said 
company,  who  now  resides  at  Cincinnati,  Ohio,  and  to  R. 
S.,  who  resides  at  Chicago,  Illinois,  and  to  others. 

S.Y., 
Attorney  for  Defendant. 

(i)  Only  notice  of  such  defenses  should  be  pleaded  as  the  defend- 
ant wishes  to  make  in  his  case,  and  the  remaining  paragraphs  should 
be  omitted.  See  R.  S.,  Sec.  4920.  Robinson  on  Patents,  Sec.  959  ei 
seg. 

No.  412. 

Replication. 

[Caption,  as  in  No.  408.] 

And  the  said  plaintiff,  as  to  the  said  pleas  of  the  said  de- 
fendant, by  him  above  pleaded,  of  which  he  has  put  himself 
upon  the  country,  doth  the  like.  R.  X., 

Attorney  for  Plaintiff. 


COPYRIGHTS  AND  TRADE-MARKS. 


No.  413. 

A  Bill  in  Equity — Infringement  of  a  Copyright    (i). 

\Caption.     See  in  No.  67.] 
To  the  Honorable,  the  Judges  of  the  Circuit  Court  of  the 
United  States  in  and  for  the District  of . 

A.  B.,  of  ,  in  the  state  of ,  and   citizen  of  said 

state,  brings  this  his  bill  against  C.  D.,  of ,  in  the  state 

of ,  and  citizen  of  said  state,  and  inhabitant  of  the 

district  of ,  and  thereupon  your  orator  complains  and 

says: 

That  heretofore  and  prior  to  securing  a  copyright  for  the 
same,  as  hereinafter  recited,  he  was  the  proprietor  of  a  book 
entitled  [set  forth  the  title\  of  which  he  is  informed  and  believes 
that  E.  F.,  an  employee  of  your  orator,  citizen  of  the  United 
States,  was  the  author,  compiler,  and  designer.  That  so  be- 
ing proprietor  of  said  book,  he  did  deposit  in  the  office 
of  the  librarian  of  congress,  prior  to  the  publication  of  said 

book,  to  wit,  the day  of ,  1894,  a  printed   copy  of 

the  title  of  said  book ;  and  your  orator  says,  upon  information 

and  belief,  that  on  the day  of ,  1894,  the  librarian 

of  congress  recorded  the  name  of  said  book  in  a  book  kept 
by  him  for  that  purpose,  in  the  words  and  manner  prescribed 
by  law,  as  will  fully  appear  from  a  properly  certified  copy  of 
said  record,  which  is  ready  to  be  produced  as  your  honors 
may  direct. 

Your  orator  further  shows  that  before  the  day  of  publica- 
tion of  said  book,  to  wit,  on  the day  of  ,  1894,  he 

367 


368  COPYRIGHTS    AND    TRADE-MARKS. 

deposited  in  the  mails  at , ,  addressed  to  the  libra- 
rian of  congress  at  Washington,  D.  C,  two  complete  printed 
copies  of  said  book,  of  the  best  edition  issued. 

Your  orator  further  shows  that  he  had  caused  to  be  printed 
on  the  title-page  of  the  several  copies  of  the  said  book  published 
by  him,  the  following  words,  to  wit:  "  Entered  according  to 
act  of  congress  in  the  year  1894  by  A.  B.,  in  the  ofl&ce  of  the 
librarian  of  congress  at  Washington,  D.  C." 

On  information  and  belief  your  orator  further  shows  unto 
your  honors  that,  by  virtue  of  the  premises  and  the  laws  of 
the  United  States  relating  to  copyrights,  he  has  been  vested 
with  a  copyright  on  said  book  entitled  [set  forth  the  title\ 
whereby  there  is  secured  to  him,  and  his  assigns,  the  exclu- 
sive right  and  liberty  of  printing,  reprinting,  publishing, 
completing,  copying,  executing,  finishing,  and  vending  the 
same,  for  the  term  of  twenty-eight  years  from  and  after  the 
day  of ,  1894. 

Your  orator  further  shows  unto  your  honors  that  he  is  now 
the  sole  and  exclusive  owner  of  said  copyright,  and  of  all  the 
rights  and  privileges  granted  and  secured,  or  intended  to  be 
granted  and  secured  thereby. 

Your  orator  further  shows  that  he  has  invested  and  expended 
large  sums  of  money,  and  has  been  to  great  trouble  and  ex- 
pense in  and  about  said  copyrighted  book,  in  the  preparation 
and  publication  of  the  same,  and  in  introducing  it  to  the 
public,  and  that  said  book  has  been  and  is  of  great  benefit 
and  advantage  to  your  orator  and  to  the  public ;  and  that  the 
public  have  generally  acknowledged  and  acquiesced  in  the 
aforesaid  rights  of  your  orator,  and  your  orator  believes  that 
he  will  realize  large  gains  and  profits  therefrom  if  piracy  and 
infringement  by  said  defendant  and  his  confederates  shall  be 
prevented. 

And  your  orator  further  shows,  upon  information  and  belief, 
that  the  defendant,  well  knowing  the  premises  and  the  rights 
secured  as  aforesaid  to  your  orator,  but  contriving  and  intend- 
ing to  injure  your  orator,  and  to  deprive  him  of  the  profits,. 


COPYRIGHTS   AND   TRADE-MARKS.  369 

benefits,  and  advantages  which  might,  and  otherwise  would, 
accrue  to  your  orator  as  aforesaid,  after  the  grant  of  said 
copyright  and  before  the  commencement  of  this  suit,  did,  at 

,  without  the  Hcense,  and  against  the  will  of  your  orator, 

and  in  violation  of  his  said  rights,  and  in  infringement  of 
said  copyright,  unlawfully,  wrongfully,  and  injuriously  print, 
publish,  offer  for  sale,  and  sell  books  which  are  exact  fac- 
simile copies  of  your  orator's  said  copyrighted  book,  or  sub- 
stantial portions  thereof. 

And  your  orator  further  shows,  upon  information  and  belief, 
that,  subsequent  to  the  grant  of  said  copyright,  the  defendant 

has  in county,  at ,  and  elsewhere  in  the  state  of 

,  offered  for  sale,  and  is  now  offering  for  sale,  and  intends 

to  continue  to  offer  for  sale,  and  to  sell  books  which  are  cop- 
ied and  pirated  from,  and  are  fac-simile  copies  of  your  orator's 
said  copyrighted  book,  or  substantial  portions  thereof,  and 
which  the  defendant  and  his  agents  publicly  and  openly 
declare  to  be  like  A.  B.'s  book,  and  to  contain  all  the  essen- 
tial features  of  A.  B.'s  book. 

All  of  which  actings  and  doings  by  the  defendant  are  in 
violation  of  your  orator's  exclusive  rights  as  aforesaid,  and  to 
your  orator's  great  and  irreparable  damage,  loss,  and  injury; 
by  which  acts  he  has  been  and  now  is  being  deprived  of  great 
gains  and  profits  which  might,  and  otherwise  would,  have 
been  obtained  by  your  orator,  but  which  has  been  received 
and  enjoyed  by  the  defendant  by  and  through  his  unlawful 
acts  and  doings. 

And  your  orator  further  shows  unto  your  honors,  on  infor- 
mation and  belief,  that  said  defendant  has  had  notice  of  his 
said  infringement  of  the  rights  of  your  orator  in  the  premises, 
and  has  disregarded  said  notice,  and  refused  to  desist  from 
said  infringement,  and  still  continues  so  to  do. 

And  your  orator  further  shows  unto  your  honors,  on  infor- 
mation and  belief,  that  the  defendant  has  made  and  realized 
large  profits  and  advantages  from  said  infringement,  but  to 
what  extent,  and  how  much  exactly,  and  how  many  of  said 


370  COPYRIGHTS  AND  TRADE-MARKS. 

books  he  has  made  and  sold,  your  orator  does  not  know,  but 
prays  a  discovery  thereof.  And  your  orator  says  that  the 
infringement  of  said  copyright  by  said  defendant,  and  his 
preparation  for  and  avowed  determination  to  continue  said 
infringement,  and  other  aforesaid  unlawful  acts  in  disregard 
and  defiance  of  the  rights  of  your  orator,  has  the  efifect  to 
encourage  and  induce  others  to  venture  to  infringe  said  copy- 
right in  disregard  of  your  orator's  rights. 

Wherefore  your  orator  prays  that  the  defendant,  C.  D.,  his 
servants,  agents,  attorneys,  employees,  workmen,  and  con- 
federates, and  each  and  every  of  them,  may  be  perpetually 
restrained  and  enjoined  by  order  and  injunction  of  this  hon- 
orable court  from  printing,  reprinting,  publishing,  complet- 
ing, copying,  executing,  finishing,  and  vending  books  like, 
or  substantially  like,  or  copied,  or  pirated  from  the  book 
copyrighted  by  your  orator  as  aforesaid  ;  and  that  said  de- 
fendant may  be  decreed  to  pay  the  costs  of  this  suit,  and  that 
your  orator  may  have  such  further  relief  as  to  this  honorable 
court  may  seem  meet,  and  as  shall  be  agreeable  to  equity. 

May  it  please  your  honors  to  grant  to  your  orator  the  writ 
of  injunction,  issuing  out  of  and  under  the  seal  of  this  hon- 
orable court,  commanding,  enjoining,  and  restraining  the  said 
defendant  and  his  servants,  agents,  employees,  workmen,  and 
confederates,  and  each  and  every  of  them,  during  the  pen- 
dency of  this  suit,  as  hereinbefore,  in  that  behalf,  prayed  in 
regard  to  said  perpetual  injunction. 

And  forasmuch  as  your  orator  can  have  no  adequate  relief 
except  in  a  court  of  equity,  where  matters  of  this  and  like 
nature  are  properly  cognizable  and  relievable,  and  to  the  end 
therefore  that  said  defendant  may,  if  he  can,  show  why  your 
orator  should  not  have  the  relief  hereby  prayed,  and  may, 
but  not  upon  oath  [the  oath  being  waived] ,  according  to  his 
best  and  utmost  knowledge,  remembrance,  information,  and 
belief,  full,  direct,  and  perfect  answers  make  to  all  and  singu- 
lar the  premises,  and  to  all  the  several  matters  hereinbefore 
stated  and  charged,  as  fully  and  particularly  as  if  severally 


COPYRIGHTS  AND  TRADE-MARKS.  37 1 

and  separately  interrogated  as  to  each  and  every  of  said  mat- 
ters, and  may  be  compelled  to  render  an  account  of  the  num- 
ber of  copies  sold,  and  pay  to  your  orator  the  profits  by  him 
acquired,  and  the  damages  suffered  by  your  orator  from  such 
unlawful  acts,  and  that  the  court  may  assess  said  profits  and 
damages  [forfeiture  of  the  infringing  books  being  expressly 
waived]. 

May  it  please  your  honors  to  grant  unto  your  orator  a  writ 
of  subpcena,  issuing  out  of  and  under  the  seal  of  this  hon- 
orable court,  directed  to  said  defendant,  C.  D.,  commanding 
him,  on  a  certain  day,  and  under  a  certain  penalty,  to  appear 
in  this  honorable  court,  and  then  and  there  to  answer  the 
premises,  and  to  stand  to  and  abide  such  order  and  decree  as 
may  be  made  against  him.     And  your  orator  will  ever  pray. 

A.  B. 
R.  X., 

Solicitor  for  Plaintiff. 

\yerification.     See  No. '^^^ 

(i)  The  circuit  court  has  original  jurisdiction  without  reference  to 
citizenship  or  value  of  subject-matter,  R.  S.,  Sec.  629,  clause  9.  As  to 
remedies  in  equity  generally,  for  infringement  of  a  copyright,  see 
Drone  on  Copyrights,  Chap.  XI.,  and  case  cited  in  notes. 


No.  414. 

Bill    in    Equity. — Trade-Mark    Registered   in   the   United 
States  Patent  Office  (i). 

\Caption^ 
To  the  Honorable  Judges  of  the  Circuit  Court  in  and  for  the 
District  of : 

B.  B.  and  G.   B.,  citizens  of   the  state  of  ,  residing 

and  doing  business  at ,  in  said  state,  as  copartners  under 

the  firm  name  of  B.  Bros.,  bring  this,  their  bill  of  complaint, 

against  C.  D.,  citizen  of  the  state  of ,  doing  business  at 

No. street,  in  the  city  of ,  in  said  state,  and 

an  inhabitant  of  the district  of . 


372 


COPYRIGHTS    AND    TRADE-MARKS. 


And  thereupon  your  orators  complain,  and  say  that  since 

the   year   i8 —  they  have  been  located  at  ,    and  have 

been  doing  business  as  a  copartnership  under  the  firm  name 
of  B.  Bros.,  and  during  the  time  since  i8 —  they  have  been 
engaged  in  the  manufacture  and  sale  of  cough  drops.  That 
for  more  than  seventeen  years  the  said  cough  drops  have 
been  of  the  general  appearance  as  follows :  color,  black ; 
form,  circular ;  about  three  quarters  of  an  inch  in  diameter ; 
flattened  on  both  sides,  one  side,  however,  being  somewhat 
rounded,  and  being  about  one-quarter  of  an  inch  in  thick- 
ness, having  stamped  upon  one  side  thereof  a  star  with  five 
points  surrounded  by  a  ring  at  a  short  distance  therefrom, 
and  on  the  other  side  stamped  B.  B.  in  heavy  letters,  with  a 
bar  above  and  below  the  letters  ;  that  said  stamps  upon  the 
faces  of  said  drops  have  been  for  seventeen  years  and  more 
past  adopted  and  used  by  your  orators  as  their  trade-mark 
for  said  drops. 

That  said  cough  drops  have  been  put  up  during  more  than 
eight  years  past  in  pasteboard  boxes  about  three  and  one 
half  inches  long,  about  ^  two  inches  wide,  and  about  three 
quarters  of  an  inch  thick,  provided  with  folding  ends.  The 
top  of  each  of  said  boxes  has  contained,  in  connection  with 
the  representations  of  the  busts  of  your  orators,  the  following 
words  and  letters : 

B.  Brothers' 

B.  B. 

Cough  Drops. 

B.  B. 

Stamped  on  each  drop. 

Trade    ^*^    Mark. 

That  upon  each  of  the  two  ends  has  been  printed  "5 
Cents,"  and  on  one  of  the  sides  has  been  printed  "  Price  5 
Cents,"  and  on  the  other  side  have  been  printed  the  words 
"Cough  Drops"  ;  that  the  lettering,  directions,  and  the  cuts 
representing  your  orators  have  been  printed  upon  said  boxes 
in  black  upon  a  white  ground.     That  at  all  times,  from  the 


COPYRIGHTS   AND   TRADE-MARKS.  373 

■commencement  of  your  orator's  business  down  to  the  pres- 
ent time,  your  orators  have  manufactured  their  cough  drops 
of  the  form  specified,  and  placed  them  on  the  market  in 
Tjoxes  having  the  peculiar  lettering  and  representations 
thereon  above  specified,  and  that  they  have  adopted  such 
peculiar  stamping  upon  the  cough  drops  themselves,  and  the 
cuts  representing  the  busts  of  two  men,  and  the  letters  B.  B. 
as  their  trade-marks,  together  with  the  peculiar  label  and 
form  of  printing  upon  said  boxes,  a  sample  of  which  is  an- 
nexed to  this  bill  and  marked  "  Schedule  B.  Brothers'  Box  "  ; 
that  said  trade-marks  and  the  said  peculiar  form  of  label 
were  different  from  any  which  had  ever  before  been  used  to 
designate  cough  drops  or  cough  syrups,  or  other  analogous 
remedies ;  that  the  said  trade-marks  and  peculiar  form  of 
label  and  said  peculiar  words  and  representations  and  cuts  have 
been  universally  known  and  recognized  as  indicating  that 
articles  having  such  trade-marks  or  labels  were  made  by 
your  orators  ;  and  that  said  peculiar  form  of  label,  the  trade- 
mark B.  B.,  and  the  trade-mark  consisting  of  the  representa- 
tion of  the  busts  of  two  men,  became,  and  ever  since  have 
been,  valuable  property  rights  of  your  orators  and  a  protec- 
tion to  purchasers  of  cough  drops  and  similar  remedies  made 
by  your  orators,  and  that  the  said  peculiar  form  of  label  and 
the  said  peculiar  letters  "  B.  B."  and  the  representation  of 
the  busts  of  two  men  have  become  and  are  the  trade-marks 
and  exclusive  property  of  your  orators,  and  that  your  orators 
are  entitled  to  the  sole  and  exclusive  use  and  benefit  thereof, 
and  that  they  are  entitled  to  recover  for  damages  or  profits 
which  have  resulted  or  accrued  from  the  infringement  of 
your  orator's  said  rights. 

And  that  your  orators  further  say  that  they  have  at  all 
times  insisted  upon  their  said  trade-marks  and  their  ex- 
clusive right  to  said  peculiar  label,  and  that  they  have  noti- 
fied the  public  thereof;  that  the  said  trade-marks  and  pecul- 
iar form  of  label  have  become  universally  known  as  the 
property  of  your  orators,  and  have  been  universally  re- 
spected until  the  infringement  herein  complained  of 


374  COPYRIGHTS   AND   TRADE-MARKS. 

And  your  orators  further  say  that  for  the  purpose  of  in- 
forming the  public  of  your  orators'  rights  in  the  premises, 
and  in  order  that  your  orators'  title  might  be  made  more 
clear  and  certain,  they  have  caused  the  said  trade-marks  to  be 
registered,  according  to  the  statutes  of  the  United  States,  as 
appears  by  the  certificates  of  such  registration,  to  wit :  cer- 
tificate No.  ,  registered  the  day  of ,  appli- 
cation  filed  the  day  of ,  the    essential   features 

of  which  consist  of  two  bust  portraits  of  male  figures,  repre- 
senting the  B.  Brothers,  your   orators,  and   certificate  No. 

,  registered  the  day  of ,  application  filed  on 

the day  of ,  the  essential  features  of  which  trade- 
mark consist  of  the  letters  "B.  B.,"  as  by  said  original 
certificate  of  registration,  or  duly  certified  copies  thereof, 
here  in  court  ready  to  be  produced,  will  more  fully  and  at 
large  appear,  a  copy  of  the  statement,  declaration,  and  repre- 
sentation of  the  trade-mark  of  each  of  said  certificates  being 
hereunto  attached  and  marked  respectively,  "  Schedule 
trade-mark  of  two  bust  portraits,"  and  "Schedule  trade-mark 
B.  B." 

And  your  orators  further  say  that  said  trade-marks,  referred 
to  in  each  of  said  certificates,  are  adapted  to  be  used  and 
have  been  used  by  your  orators  in  connection  with  a  single 
package  of  cough  drops  for,  more  than  seventeen  years  in 
commerce  with  Canada  and  other  foreign  countries  (2),  and 
very  extensively  throughout  the  United  States ;  and  that 
your  orators  are  entitled  to  the  exclusive  use  of  said  trade- 
marks as  applied  to  cough  drops,  and  boxes  and  packages 
containing  cough  drops,  cough  syrups,  confectionery,  and 
analogous  remedies,  and  that  said  trade-marks  have  been  used 
by  your  orators  in  such  commerce  in  connection  with  the 
peculiar  label  shown  in  "Schedule  B.  Brothers'  Box." 

And  your  orators  further  say  that  the  cough  drops  manu- 
factured and  sold  by  your  orators,  as  aforesaid,  have  been  and 
are  of  superior  quality,  and  that  said  cough  drops  have  been 
compounded  according  to  your  orators'  peculiar  and  exclusive 


COPYRIGHTS   AND   TRADE-MARKS.  375 

formula,  and  that  the  said  cough  drops  have  met  with  great 
favor  as  an  alleviation  of  coughs,  colds,  and  hoarsenesss,  and 
that  since  the  time  they  were  first  placed  upon  the  market 
their  reputation  has  steadily  increased  and  the  demand  for 
them  has  been  more  and  more  from  year  to  year,  until  now 
your  orators'  sales  amount  to  more  than  fifty  tons  on  the 
average  each  month. 

And  your  orators  further  show  that  heretofore  in  a  suit 
commenced  by  your  orators  in  the  circuit  court  of  the  United 
States  for  the district  of ,  against  A.  T.  for  infringe- 
ment of  your  orators'  trade-mark  rights,  said  defendant  hav- 
ing in  place  of  the  letters  B,  B  upon  cough  drops  used  the 
letters  A.  T.,  which  said  defendant  stamped  upon  his  cough 
drops  on  one  side  in  connection  with  a  star  on  the  reverse  side 
thereof,  and  said  defendant  having  in  place  of  two  male  fig- 
ures, as  shown  upon  the  boxes  of  your  orators,  substituted 
the  representation  or  the  bust  of  a  male  figure  substantially 
like  those  of  your  orators,  but  with  some  changes  in  details,  a 
motion  for  an  injunction  pendente  lite  was  made  and  a  hearing 
had  upon  said  motion  before  his  honor  J.  S.,  judge  of  said 
court,  upon  the  pleadings,  affidavits,  and  exhibits;  that  upon 

the day  of ,  189 — ,  a  decision  was  rendered  in  said 

cause,  finding  that  your  orators  were  entitled  to  use,  have, 
and  enjoy  the  particular  marks  adopted  by  themselves,  as 
above  described,  and  as  set  forth  in  the  certificates  of  regis- 
tration hereto  attached,  and  that  the  drops  made  by  defend- 
ant, with  the  letters  A.  T.  stamped  thereon,  were  an  unlawful 
and  wrongful  imitation  of  those  made  by  your  orators,  and 
were  in  violation  of  your  orators'  rights  to  their  trade-mark 
aforesaid,  and  the  defendant  in  this  suit  was  enjoined  and 
restrained,  until  further  order  of  the  court,  from  making  or 
selling  or  using  boxes  in  infringement  of  your  orators'  trade- 
mark rights,  or  so  nearly  like  the  boxes  used  by  your  orators 
as  might  be  calculated  to  deceive  purchasers,  as  by  a  certified 
copy  of  said  decree  here  in  court,  and  ready  to  be  produced, 
will  more  fully  and  at  large  appear,  a  copy  of  said  decree  be- 
ing hereto  attached  as  "  Schedule  Exhibit  A.  T.  Decree." 


376  COPYRIGHTS   AND   TRADE-MARKS. 

And  your  orators  further  say  that  your  orators'  exclusive 
rights  in  the  premises  are  of  very  great  value  in  their  busi- 
ness, and  that  the  defendant's  acts  and  doings,  hereinafter 
mentioned,  in  the  infringement  of  your  orators'  rights,  have 
caused  and  are  causing  your  orators  great  and  irreparable 
pecuniary  loss  and  injury ;  that  the  amount  of  such  direct 
damage  and  injury  to  your  orators,  as  your  orators  verily 
believe,  amounts  to  more  than  two  thousand  dollars,  exclu- 
sive of  interest  and  costs,  and  your  orators  verily  believe,  if 
continued,  will  amount  to  many  thousands  of  dollars. 

And  your  orators  further  show  unto  your  honors  that,  not- 
withstanding their  said  exclusive  possession  of  said  trade- 
marks and  said  peculiar  label,  and  in  violation  of  your  ora- 
tor's rights,  the  defendant  herein,  well  knowing  the  wrong 
and  injury  he  was  thereby  doing  unto  your  orators,  has  made 

and  sold,  and  is  making  and  selling,  in ,  and  elsewhere 

in  the  United  States,  and  for  commerce  with  foreign  nations 
and  the  Indian  tribes,  cough  drops  put  up  in  paper  boxes 
identically  like  the  boxes  and  labels  used  by  your  orators, 
and  described  in  paragraph  three  of  this  bill,  except  that 
some  changes  have  been  made  in  the  features  of  the  cuts  of 

the  two  male  figures,  and  except  that  in  place  of  "B " 

the  word  "D "  has  been  employed,  and  "C.  D."  instead 

of  "B.  B,"  and  " , ,"  instead  of  " , ."     The 

cough  drops  made  and  sold  by  defendant  as  aforesaid  have 
stamped  thereon  a  five-pointed  star  on  one  side,  and  on  the 
other  the  letters  "  D.  D."  with  a  bar  below  the  letters. 

And  your  orators  further  allege,  upon  information  and 
belief,  that  the  cough  drops  made  and  sold  by  defendant  are 
of  inferior  quality,  and  have  been  sold  by  defendant  to 
dealers  at  a  price  less  than  the  price  at  which  your  orators 
have  sold  their  cough  drops,  and  that  the  words  "D.  D." 
marked  upon  defendant's  labels  do  not  represent  any  firm, 
individuals,  or  corporation  in  any  way  interested  in  or  con- 
nected with  the  manufacture  and  sale  of  the  defendant's  said 
cough  drops ;  but  that  the  defendant  wickedly,  fraudulently, 


COPYRIGHTS   AND   TRADE-MARKS.  377 

and  falsely  has  adopted  the  same  for  the  purpose  of  deceiv- 
ing the  public  and  inducing  purchasers  of  their  inferior  and 
unwholesome  product  to  believe  that  the  same  is  of  the  man- 
ufacture of  your  orators  herein,  and  thus  to  palm  off  his  in- 
ferior product  upon  the  public;  and  that  the  public  have  to 
pay  the  retail  dealers  for  defendant's  inferior  and  unwhole- 
some product  the  same  that  is  charged  for  your  orator's 
superior  cough  drops,  and  that  the  public  have  been  thus 
deceived  and  have  been  induced  to  purchase  defendant's  un- 
wholesome product,  and  that  the  reputation  of  your  orators 
has  been  greatly  damaged. 

To  the  end,  therefore,  that  the  defendant  may,  if  he  can, 
show  cause  why  your  orators  should  not  have  the  relief 
prayed,  and  may  make  a  full  disclosure  and  discovery  of  all 
the  matters  aforesaid,  but  not  upon  oath,  answer  under  oath 
being  waived,  and  according  to  the  best  and  utmost  of  his 
knowledge,  remembrance,  and  information  and  belief,  full, 
true,  direct,  and  perfect  answer  make  to  the  matters  herein- 
before stated  and  charged. 

And  that  the  defendant  may  be  decreed  to  account  for  and 
pay  over  to  your  orators  the  income  and  profit  thus  unlaw- 
fully derived  from  the  violation  of  said  trade-marks,  and 
your  orators'  exclusive  rights  in  and  to  the  use  of  the  same, 
and  your  orators'  exclusive  rights  to  the  said  peculiar  label, 
and  be  restrained  from  any  further  violation  of  said  rights, 
your  orators  pray  that  your  honors  may  grant  a  writ  of  in- 
junction, issuing  out  of  and  under  the  seal  of  this  honorable 
court,  perpetually  enjoining  and  restraining  the  said  defend- 
ant, his  clerks,  attorneys,  agents,  servants,  and  workmen, 
from  any  use  in  any  manner  of  said  trade-marks,  or  any  part 
thereof  and  of  said  label  of  your  orators'  in  violation  of  your 
orators'  rights  as  aforesaid.  And  that  your  honors,  upon 
rendering  of  the  decree  above  prayed,  may  assess,  or  cause  to 
be  assessed,  in  addition  to  the  profits  to  be  accounted  for  by 
the  defendant,  as  aforesaid,  the  damages  your  orators  have 
sustained  by  reason  of  such  infringement. 


378  COPYRIGHTS    AND    TRADE-MARKS. 

And  your  orators  further  pray  that  a  provisional  or  pre- 
liminary injunction  be  issued  restraining  the  said  defendant 
from  any  further  infringement  of  said  trade-marks  pending 
this  cause,  and  for  such  other  and  further  relief  as  the  equity 
of  the  case  may  require,  and  to  your  honors  may  seem  meet. 

May  it  please  your  honors  to  grant  unto  your  orators,  not 
only  a  writ  of  injunction  conformable  to  the  prayer  of  this 
bill,  but  also  a  writ  of  subpoena  of  the  United  States  of 
America,  directed  to  the  said  C.  D.,  commanding  him  on  a 
day  certain  to  appear  and  answer  unto  this  bill  of  complaint, 
and  to  abide  and  perform  such  order  and  decree  in  the  prem- 
ises as  to  the  court  shall  seem  proper,  and  required  by  the 
principles  of  equity  and  good  conscience. 

R.  X., 
Attorney  for  Plaintiflf. 

(i)  The  entire  Act  of  July  8,  1870  (R.  S.,4937  to  4947),  and  the  Act 
of  August  14,  1876  (19  Stat,  at  L,.  141),  relating  to  trade-marks,  are  in- 
valid. For  construction  of  these  statutes,  see  Trade-Mark  cases,  100 
U.  S. ,  82  ;  Baldwin  vs.  Franks,  120  U.  S.,  687.  In  framing  a  bill  for  in- 
fringement of  a  trade-mark  registered  under  the  Act  of  March  3,  1881, 
(21  Stat,  at  L.,  502,  chap.  138),  it  is  safer  practice  to  make  allegations 
suflficient  to  sustain  a  bill  on  a  common  law  trade-mark.  The  act  of 
March  3,  1881,  was  evidently  drawn  with  reference  to  an  intimation  of 
the  supreme  court  in  deciding  the  trade-mark  cases  (100  U.  S.  82). 
This  legislation,  however,  has  been  recognized  without  question  as  to 
its  validity  in  Luyties  vs.  Holendeer,  30  Fed.  Rep.,  632 ;  Glen  Cove 
Mn'fr  Co.  vs.  Ludeman,  23  Blatchf  46 ;  Pratt  Mn'fr  Co.  vs.  Astral  Refin- 
ing Co.,  27  Fed.  Rep.,  492.  The  8th  clause  of  Sec.  8  of  the  first  article 
of  the  Constitution  of  the  United  States  (patent  and  copyright  clause) 
does  not  confer  requisite  authority  of  Congress,  and  the  Act  of  March 
3,  1881,  evidently  refers  to  the  3d  clause  of  the  same  section  for  the 
requisite  authority.     See  Trade-Mark  cases  supra. 

(2)  A  circuit  court  has  no  jurisdiction  of  suits  for  the  infringement 
of  a  trade-mark  if  the  plaintiff  and  defendant  are  citizens  of  the  same 
state,  and  the  bill  does  not  allege  that  the  trade-mark  in  controversy 
was  used  on  goods  intended  to  be  transported  to  a  foreign  country ; 
see  Ryder  vs.  Holt,  128  U.  S.,  525 ;  or  used  in  lawful  commercial  inter- 
course with  an  Indian  tribe.  Schumacher  vs.  Schwenke,  26  Fed.  Rep., 
818.     In  a  suit  to  restrain   the  infringement  of  a  trade-mark  the 


COPYRIGHTS   AND    TRADE-MARKS.  379 

amount  in  dispute  in  determining  the  jurisdiction  does  not  depend 
upon  the  profits  sought  to  be  recovered.  Symonds  vs.  Greene,  28  Fed. 
Rep.,  834;  see  also  Act  of  March  3,  1881,  21  Stat,  at  ly.  502,  Sec.  7,. 
last  clause,  and  Sec.  11. 


No.  415. 

Bill  in  Equity.— Common  Law  Trade-mark.     (Aliens 
against  Citizens)  (i.) 

The  Circuit  Court  of  the  United  States 

for  the District  of . 

A.  B.,  C.  D.,  and  E.  F.,  partners  as  A.  B.  &  Co.," 

Plaintiffs, 
vs.  J>  In  Equity. 

G.  H.  and  J.  K.,  partners  as  G.  H.  &  Co., 

Defendants.  J 
To  the  Honorable,  the  Judges  of  the  Circuit  Court  of  the 

United  States  for  the District  of ,  sitting  as  a 

Court  of  Equity. 

A.  B.  and  C.  D.,  both  of  city  of ,  in  the  Kingdom  of 

Prussia,  and  Empire  of  Germany,  and  both  of  whom  are 
aliens,  and  subjects  of  the  King  of  Prussia  and  Emperor  of 

Germany,  and  E.  F.  of  the  city  of ,  in  the  Republic  of 

France,  and  who  is  an  alien  and  citizen  of  the  Republic  of 
France,  show  unto  your  honors  that  they,  the  said  A.  B.,  C. 
D.,  and  E.  F.,  are  copartners,  lawfully  engaged  in  business  at 

the  said  city  of ,  in  said  Republic  of  France,  under  the 

firm  name  of  A.  B.  &  Co  ,  and  do  bring  this  their  bill  of 

complaint  against  G.  H.  and  J.  K.,  of  the  city  of ,  in  the 

county  of ,  and  state  of — — ,  who  are  copartners,  engaged 

in  business  in  said  city  of ,  under  the  firm  name  of  G, 

H.  &  Co.,  and  all  of  whom  are  citizens  of  the  said  state  of 
,  and  inhabitants  of  said district  of ,  and  here- 
inafter referred  to  as  the  defendants. 

And,  therefore,  your  orators  complain  and  say  that  they  are 
manufacturers  of  [champagne  wine],  doing  business  at  said 
city  of ,  and  that  they  are  the  successors  in  business  of 


380  COPYRIGHTS   AND   TRADE-MARKS. 

the  original  firm  of  A.  B.  &  Co.,  of  said  ,  which  firm 

was  established  during  the  year  18 — ;  that  they  now  conduct 
and  carry  on  the  business  by  said  firm  of  A.  B.  &  Co.,  and 
their  successors,  established  and  built  up  during  many  years, 
and  own  and  occupy  the  premises  by  their  predecessors 
occupied,  and  are  vested  with  all  the  rights  of  each  and  all 
their  predecessors,  ail  and  singular,  including  the  good  will  of 
their  business,  and  businesses,  and  their  trade-marks,  brands, 
names  of  trade,  and  duplicate  copies  of  which  have  been 
deposited  in  the  patent  office  of  the  United  States,  and  your 
orators  are  in  all  things  vested  with  all  the  rights  and  inter- 
ests of  their  predecessors  in  business,  all  and  singular,  and 
are  the  owners  thereof. 

And  your  orators  further  say  that  the  [champagne  wine], 
by  them  manufactured,  now  enjoys,  and  has  for  many  years 
enjoyed,  a  high  reputation  in  the  markets  of  the  United  States 
and  elsewhere,  where  it  is  now  and  for  many  years  has  been 
sold  in  large  quantities,  and  that  by  reason  of  its  superior 
quality,  and  the  diligent  efforts  of  your  orators  in  the  prem- 
ises, there  has  been  established  and  now  exists  in  the  United 

States  and  at  the  city  of ,  and  elsewhere,  a  very  large 

and  profitable  business  in  the  importation  and  sale  thereof, 
which  business  is  now  by  them  carried  on  and  is  a  source  of 
great  profit. 

And  your  orators  further  say  that  they  have  heretofore 
introduced  into  the  markets  of  the  United  States  a  certain 
[champagne  wine]  of  superior  quality,  which  has  been  known, 
identified,  referred  to,  and  called  for  as  ["Mumm's  Extra 
Dry"],  which  has  long  been,  and  is  now,  in  very  great 
demand,  and  known,  referred  to,  and  distinguished  by  the 
said  designation  [Mumm's  Extra  Dry,"  or^  "Extra  Dry 
Mumm"],  and  in  many  instances  as  ["Extra  Dry"],  the 
word  ["Mumm"]  being  understood  by  reason  of  the  great 
popularity  and  extensive  use  of  the  said  wine. 

And  your  orators  further  say  that  their  said  ["Extra  Dry" 
champagne]  has  been  put  up  in  bottles  of  the  customary 


COPYRIGHTS    AND    TRADE-MARKS.  381 

shape  and  sizes,  to  which  have  been  applied  and  attached 
labels  bearing  your  orators'  firm  name,  the  principal  label  on 
each  bottle  being  a  label  of  octagonal  shape,  the  central  field 
of  which  has  been  occupied  by  the  words  and  letters  "Extra 
Dry.  A.  B.  &  Co.,"  all  as  appears  by  a  specimen  of  the  said 
/label  hereunto  annexed  and  marked  "Plaintiffs'  Label." 
i  And  the  said  ["Extra  Dry"  champagne]  has  also  been  dis- 
tinguished and  identified  by  reason  of  its  bearing  a  certain 
rose-colored  capsule,  as  will  more  fully  appear  by  a  bottle 
of  plaintiffs'  said  [wine]  herewith  produced,  marked  ["  Plaint- 
iffs' Wine"],  and  made  a  part  hereof. 

And  your  orators  further  say  that  the  said  label  hereto  at- 
tached has  been  used  without  change  for  a  period  of  more 

than  years  past,  and  is  now  in  use,  and  your  orators 

aver  that  they  have  the  exclusive  right  to  use  the  said  label, 
and  also  the  said  capsule,  and  that  the  same  are  their  prop- 
erty for  the  uses  and  purposes  aforesaid,  to  which  they  are 
entitled  to  the  exclusion  of  all  others. 

And  your  orators  further  say,  upon  information  and  belief, 
that  the  said  defendants  are  engaged  in  business  as  dealers 

in  [wines  and  liquors]  in  the  city  of ,  and  that  the  said 

defendants  have,  well  knowing  your  orators'  rights  in  the 
premises,  and  since  your  orator's  rights  were  acquired,  and 
since  they  became  exclusively  entitled  in  the   premises  as 

aforesaid,  to  wit,  since  the day  of ,  i8 — ,  in  said 

district  of ,  and  elsewhere,  and  wholly  without  your 

orators'  consent,  and  in  violation  of  their  rights  aforesaid, 
fraudulently  and  unlawfully  offered  and  sold  a  so-called 
[champagne  wine]  of  very  inferior  quality,  not  manufactured 
by  or  for  your  orators,  which  has  been  put  up  and  contained 
in  bottles  resembling  those  used  by  your  orators,  to  which 
they  have  attached  or  applied  a  label,  or  labels,  consisting  in 
part  of  the  words  and  letters  ["Mumm's  Extra  Dry,  S.  B. 
and  G.  D."],  the  labels  being  of  substantially  the  same  size 
and  shape  as  the  label  used  by  your  orators  and  hereinbefore 
described,  and  a  specimen  of  which  labels  so  by  the  defend- 


383  COPYRIGHTS   AND   TRADE-MARKS. 

ants  used  is  annexed  to  the  bottle  produced  herewith,  marked 
["  Defendant's  Wine  ",],  and  made  a  part  hereof. 

And  your  orators  in  like  form  and  manner  charge  that  the 
said  defendants  have  made  use  of  a  rose-colored  cap  like 
that  used  by  your  orators,  and  hereinbefore  described,  as  ap- 
pears by  a  specimen  of  said  cap  forming  a  part  of  the  exhibit 
herewith  produced,  marked  ["Defendant's  Wine"],  which 
exhibit  is  a  bottle  of  the  [wine]  actually  sold  by  the  defend- 
ants, and  which  is  made  a  part  hereof. 

Your  orators  say,  on  information  and  belief,  that  the  said 
so-called  [champagne]  of  the  defendants,  sold  by  the  defend- 
ants, as  hereinbefore  recited,  and  marked,  labeled,  and  identi- 
fied as  aforesaid,  is  a  cheap  and  inferior  liquid  manufactured 
in  the  United  States,  and  that  the  statements  of  said  label 
hereto  attached,  marked  "Defendant's  Label,"  are  all  and 
singular  without  foundation.      There  is  no  such  house  or 

firm  in  existence  at ,  or  elsewhere,  as  "  S.  B.  and  G.  D.," 

nor  is  there  any  such  firm  in  New  York  as  "  W.  G.  &  Co.," 
nor  is  the  so-called  [wine]  of  the  defendants  an  ["  Extra 
Dry"  champagne]. 

Your  orators'  representatives  in  the  United  States  are  the 
firm  of  "  F.  D.  &  Co.,"  and  who  also  represent  "  Messrs.  D. 

&  Co.,"  of ,  for  which  reason  your  orators  believe  the 

names  "  B.  &  D."  were  associated  together  and  used  in  said 
label. 

Your  orators  charge  that  the  bottle  of  [wine]  herewith  pro- 
duced, marked  ["  Defendant's  Wine,"]  was  actually  sold  by 
the  defendants  at  the  time  and  place  aforesaid,  and  that  the 
defendants  have  also  sold  a  large  number  of  other  bottles  of 
[wine]  in  every  way  like  it,  as  and  for  your  orators'  [wine] , 
and  a  wine  of  their  production,  and  as  their  well-known 
["Extra  Dry,"]  and  as  and  for  ["Mumm's  Extra  Dr>',"] 
and  the  champagne  hereinbefore  referred  to,  in  violation  of 
your  orators'  rights  in  the  premises,  and  to  their  great  loss 
and  injury. 

And  your  orators  say  that  the  acts  of  the  defendants  here- 
inbefore recited,  and  the  false  and  fraudulent  use  of  the  word 


COPYRIGHTS   AND   TRADE-MARKS.  383 

["  Mumm,"]  and  the  said  label  designated  ''Defendant's 
Label,"  constitutes  an  unfair  and  fraudulent  competition  in 
business  and  are  inequitable  and  unlawful,  and  have  enabled 
and  necessarily  have  the  effect  of  causing  the  sale  and  sub- 
stitution of  the  [wine]  bearing  the  defendants'  said  label  for 
the  wine  of  your  orators,  to  their  great  injury,  and  to  the 
injury  of  the  public. 

And  your  orators  further  say  that  by  reason  of  the  prem- 
ises aforesaid,  and  their  long,  continuous,  and  uninterrupted 
use  of  said  words,  ["  Mumm's  Extra  Dry,"]  which  designa- 
tion has  been  by  them  and  their  predecessors  used  as  afore- 
said continuously  and  exclusively  for  a  period  of  not  less 

than years  last  past,  and  by  reason  of  the  very  large 

and  valuable  business  and  good- will  created  by  them  .in 
the  United  States,  they  have  acquired  in  respect  of  the  de- 
signation ["  Mumm's  Extra  Dry  "]  certain  rights  which  will 
be  protected  in  equity  as  against  the  false  and  fraudulent  use 
by  the  defendants  of  the  said  designation  as  hereinbefore  set 
forth,  and  which  rights  they  pray  may  be  protected  as  here- 
inafter more  specially  prayed. 

And  your  orators  further  show  that  they  cannot  with  cer- 
tainty state  the  exact  amount  of  the  profits  diverted  by  the 
said  defendants,  but  believe  the  same  to  be  of  the  full  sum 
of  five  thousand  dollars,  and  so  charge  the  fact  to  be,  and 
pray  that  the  said  defendants  make  full  and  true  disclosures 
as  to  the  same,  and  may  be  decreed  to  account  therefor  in 
full,  and  otherwise  to  respond  in  damages  as  may  appear  to 
be  equitable. 

To  the  end,  therefore,  that  your  orators  may  obtain  relief 
in  the  premises  in  this  honorable  court  where  they  alone  can 
obtain  relief,  they  humbly  pray  : 

First.  That  the  said  G.  H.  &  J.  K.  may  be  made  defend- 
ants to  this  bill,  and  compelled  to  answer  each  and  every 
allegation  therein  contained,  but  not  under  oath,  the  same 
being  waived  and  as  fully  and  directly  interrogated  as  to  each. 

Second.  That  the  said  G.  H.  and  J.  K.  may  be  compelled 
to  render,  before  a  commissioner  of  this  court,  a  full,  true 


384  COPYRIGHTS    AND    TRADE-MARKS. 

perfect,  and  complete  account  of  all  profits  diverted  from 
your  orators,  or  made  by  the  unlawful  use  of  the  word 
["  Mumm,"]  or  by  the  sale  of  goods  in  connection  with  the 
name  ["Mumm  "]  shall  have  been  by  him  unlawfully  used, 
and  may  be  decreed  to  pay  unto  your  orators  the  full  amount 
of  such  profits. 

Third.  That  the  said  G.  H.  and  J.  K.,  their  agents  and 
servants,  and  all  claiming  or  holding  through  or  under  them, 
be  forever  enjoined  and  restrained  fiom  in  any  form  or  man- 
ner whatsoever  making  use  of  the  name  ["  Mumm  "]  in  con- 
nection with  any  fluid  not  manufactured  by  your  orators, 
having  the  characteristics  of  [champagne],  and  from  using 
said  word  ["  Mumm  "]  as  part  of  a  label  or  labels,  and  from 
using  it  as  part  of  a  mark  or  brand,  and  from  in  any  way  at- 
taching, affirming,  or  applying  the  name  ["Mumm"]  by 
means  of  labels  or  otherwise,  to  bottles  containing  a  fluid 
not  of  your  orators'  manufacture,  having  the  characteristics 
of  [champagne  wine],  and  from  making  use  of  labels  like 
the  label  designated  "  Defendant's  Label,"  and  otherwise  in 
every  way  enjoining  and  restraining  them  from  any  and 
every  unlawful  and  untruthful  use  of  the  said  name 
["  Mumm,"]  and  any  and  every  name  or  word  which  is  sub- 
stantially like  it. 

Fourth.  That  a  preliminary  injunction  may  be  issued 
without  delay,  restraining  the  said  G.  H.  and  J.  K.  in  every 
way  as  prayed  in  the  preceding  paragraph  numbered  three. 

Fifth.  And,  finally,  to  the  end  that  equity  may  become 
and  the  relief  herein  prayed  for,  and  all  other  relief  that  it 
may  be  righteous  in  the  premises  to  administer,  may  be  af- 
forded your  orators,  may  it  please  your  honors  such  relief 
fully  to  grant,  and  to  award  against  the  said  G.  H.  and  J. 
K.  a  writ  of  subpoena  ad  respondendum  of  the  United  States 
of  America,  issuing  out  of  and  under  the  seal  of  this  honor- 
able court,  commanding  them  on  a  day  certain  therein  to  be 
named,  and  under  a  certain  penalty,  to  be  and  appear  in  this 
honorable  court,  then  and  there  to  answer  all  and  singular 


COPYRIGHTS   AND   TRADE-MARKS.  385 

the  premises,  and  to  stand  to,  perform,  and  abide  such  fur- 
ther order,  direction,  and  decree  as  may  be  made  against 
them. 

And  your  orators  as  in  duty  bound  will  ever  pray. 

X.  &  X., 
Solicitors  for  Plaintiffs. 
R.  X., 
of  Counsel. 
United  States  of  America, 
State  of , 

County  of ,  ss. 

A.  D.,  being  duly  sworn,  deposes  and  says  as  follows, 
to  wit: 

I  am  a  member  of  the  firm  of  F.  D.  &  Co.,  of  the  city  of 

,  in  the  county  and  state  of ,  which  said  firm  are 

now  and  have  been  for  upwards  of  fifteen  years  last  past, 
the  sole  agent  of  the  plaintiffs  in  the  United  States,  for 
the  importation  and  sale  of  plaintiffs'  [champagne  wine].  I 
have  read  the  foregoing  bill  of  complaint  and  know  the 
contents  thereof;  I  know  of  my  own  knowledge  that  all  the 
matters  and  things  stated  concerning  the  acts  of  the  plaintiffs 
are  true,  and  as  to  all  other  matters  and  things,  I  verily 
believe  them  to  be  true. 

The  plaintiffs  reside  in  Europe,  which  is  the  reason  this 
aflSdavit  is  made  by  me.  A.  D. 

Sworn  to  and  subscribed  to  before  me  this day  of , 

1891.  J.  N., 

[►S^^/.]  Notary  Public  in  and  for County. 

(i)  Taken  from  the  record  in  Peter  H.  Von  Mumm,  etal.,  vs.  Morris 
Mihalovitch,  et  al.,  in  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  Ohio.     See  note  to  No.  414. 


No.  416. 

Allegation  of  Assignment  Before  Bringing  Suit. 
See  form  No.  340. 


386  COPYRIGHTS  AND  TRADE-MARKS. 

No.  417. 

Allegation  of  Prior  Adjudication. 
See  form  No.  343. 


No.  418. 

Declaration  at  Law  in  Copyright  Case. 

The  pleader  will  find  sufficient  guide  in  form  of  Declaration 
in  Patent  Case  (No.  408),  and  Bill  for  Infringement  of  Copy- 
right (No.  413). 

No.  419. 

*Declaration  at  Law;    Infringement  of  a  Registered 
Trade-Mark  (i). 

[Caption  and  commencement.  See  forms  Nos.  i  to  4.] 
For  that  whereas  the  said  plaintiff,  for  divers  years  before 
and  at  the  time  of  the  committing  of  the  grievances  herein- 
after next  mentioned,  did  manufacture,  vend,  and  sell,  and 
continued  to  manufacture,  vend,  and  sell,  and  still  does  con- 
tinue to  manufacture,  vend,  and  sell,  for  profits,  in  com- 
merce with  Canada  and  other  foreign  countries  (2),  and 
throughout  the  United  States,  divers  large  numbers  of  a 
certain  reaping-machine  called  the  "  Ohio,"  which  said  ma- 
chine the  said  plaintiff"  was  then,  and  still  is,  used  and  ac- 
customed to  sell,  each  machine  bearing  a  representation  of 
"Time"  with  a  scythe,  and  the  word  "Ohio"  in  raised 
characters  as  a  trade-mark  therefor. 

And  the  said  plaintiff  says,  that  being  then  domiciled  at 

,  in  the  state  of ,  and  for  the  purpose  of  informing 

the  public  of  his  rights  in  the  premises,  and  in  order  that 
his  title  might  be  made  more  clear  and  certain,  caused 
said  trade-mark  to  be  registered  according  to  the  statute  of 
the  United  States,  as  appears  by  the  certificate  of  such  reg- 
istration, to  wit :    Certificate   No. ,  registered  the  

day  of  ,   1894,  which  certificate   was  duly  granted   as 


COPYRIGHTS   AND   TRADE-MARKS.  387 

aforesaid  to  remain  in  force  for  thirty  years  from  that  date, 
and  was  in  full  force  when  the  grievances  hereinafter  com- 
plained of  were  committed,  the  essential  features  of  which 
trade-mark  consists  in  [s^ale  what^  as  a  representation  of 
"Time"  with  a  scythe,  and  the  word  "Ohio"  in  raised 
characters],  as  by  said  original  certificate  of  registration,  or 
a  duly  certified  copy  thereof,  here  in  court  ready  to  be  pro- 
duced, will  more  fully  and  at  large  appear,  a  copy  of  the 
statement,  declaration  of  the  registration  of  the  trade-mark, 
and  of  said  certificate  being  hereto  attached,  and  made  part 
hereof,  and  marked  "A." 

And  the  plaintiff"  further  says  that  the  said  trade-mark  re- 
ferred to  in  the  said  certificate  is  adapted  to  be  used,  and 
has  been  used  by  him  in  connection  with  reaping-machines 

for  more   than  years,  in  commerce  with  Canada  and 

other  foreign  countries,  and  very  extensively  throughout  the 
United  States,  and  that  he  has  been  and  is  entitled  to  the 
exclusive  use  of  the  said  trade-mark  as  applied  to  reaping- 
machines. 

And  the  said  plaintiff"  further  says  that  before,  and  at  the 
time  of  committing  the  grievances  hereinafter  next  men- 
tioned, he  had  gained  and  acquired  great  fame  and  reputa- 
tion with  the  public  on  account  of  the  excellent  properties 
of  the  said  reaping-machines  so  by  him  manufactured, 
vended,  and  sold,  whereby  the  said  plaintiff"  daily  acquired 
and  obtained  great  gain  and  profit.  Yet  the  said  defendant, 
well  knowing  the  premises,  but  contriving  to  injure  the  said 
plaintiff"  in  his  said  sale  of  reaping-machines,  and  to  de- 
prive him  of  the  great  gains  and  profits  which  the  said 
plaintiff"  would  otherwise  have  acquired  by  manufacturing, 

vending,  and  selling  the  said  machine,  did,  on  the day 

of ,  1894,  and  at  divers  other  times  before  and  after- 
wards, and  before  the  commencement  of  this  suit,  unlaw- 
fully and  wrongfully,  injuriously,  deceitfully,  and  fraudu- 
lently, against  the  will,  and  without  the  license  or  consent 
of  the  said  plaintiff",  manufacture  and  make,  and  cause  to  be 


388  COPYRIGHTS   AND   TRADE-MARKS. 

manufactured  and  made,  divers,  to  wit :  Five  hundred  reap- 
ing machines,  marked  in  imitation  of,  and  bearing  an  almost 
exact  copy  of,  the  said  plaintiff's  trade-mark,  to  wit,  [the  said 
representation  of  "Time"  with  a  scythe,  and  the  word 
"Ohio"  in  raised  characters,]  as  hereinbefore  set  forth,  in 
order  to  denote  that  the  reaping-machine  of  the  said  de- 
fendant was  the  genuine  reaping-machine  manufactured, 
vended,  and  sold  by  the  said  plaintiff;  and  did  knowingly, 
wrongfully,  injuriously,  deceitfully,  and  fraudulently  vend 
and  sell,  for  his  own  lucre  and  gain,  the  last-mentioned 
reaping-machines;  by  reason  of  which  said  premises  the 
said  plaintiff  has  been  greatly  injured,  and  deprived  of  great 
profit  and  advantage,  in  being  hindered  and  prevented  by 
the  said  defendant  from  selling,  vending,  and  disposing  of 
divers  large  numbers,  to  wit,  five  hundred  of  the  said  reap- 
ing-machines, which  the  said  plaintiff  would  otherwise  have 
sold,  vended,  and  disposed  of,  and  has  thereby  sustained 
actual  damage  to  the  amount  of  ten  thousand  dollars. 

Yet  the  said  defendant,  though  requested,  has  never  paid 
the  same,  or  any  part  thereof,  to  the  said  plaintiff;  but  has 
refused,  and  yet  refuses  so  to  do. 

Wherefore  the  plaintiff  prays  judgment  in  the  said  sum  of 
ten  thousand  dollars,  and  for  costs  herein. 

(i)  See  note  to  No.  414. 

(2)  It  must  appear  that  the  trade-mark  was  used  on  goods  in  com- 
merce with  foreign  countries,  or  the  Indian  tribes,  in  order  to  bring 
the  case  within  the  statute.    Act  of  March  3,  i88i,  21  St.  at  L.,  502. 


No.  420. 

Appearance. 
See  Nos.  11,  12,  and  13. 


No.  421. 

Security  for  Costs. 

For  form  of  Motion  for  Additional  Security  for  Costs,  see 
No.  220,  and  for  form  of  Cost  Bond,  see  No.  36. 


COPYRIGHTS   AND   TRADE-MARKS.  389 

No.  422. 

Amendment. 
Consult  Nos.  234,  235,  and  236. 


See  No.  218. 


No.  423. 

Replication. 


No.  424. 

Limiting  Time  within  which  to  take  Evidence. 

For  forms  of  Motion  to  Assign  Time  and  Order  on  the 
same,  see  Nos.  244  and  245. 

No.  425. 

Depositions. 

For  forms  for  Stipulation  Appointing  Notary  Public  and 
Examiner,  Notice  for  Taking  Depositions,  Commencement  for 
Depositions,  Certificate,  see  Nos.  253  to  260,  and  for  forqi  for 
Transmission,  see  No.  26. 


No.  426. 
Depositions  De  Bene  Esse. 

Consult  Nos.  22  to  26. 


No.  427. 

Costs. 
For  form,  see  Nos.  27  and  28. 

No.  428. 

Stipulation  to  Submit  Cause  on  Brief. 
For  form,  see  No.  267. 


390  COPYRIGHTS   AND   TRADE-MARKS, 

No.  429. 

Master. 

For  forms  of  Decree  Referring  Cause  to  Master,  Oath  of 
Master,  Summons  by  Master,  Master's  Report,  Exceptions  to 
Master's  Report,  see  forms  under  titles  "Equity,"  "Receiv- 
ers," and  "  Patents." 

No.  430. 

Preliminary  Injunction. 

Consult  forms  under  title  "  Patents." 


No.  431. 

Contempt  Proceedings. 
See  forms  under  title  "  Patents." 


No.  432. 

Decree  Dismissing  Bill. 
See  form  Nos.  268  to  270. 

No.  433. 

Final  Decree  (Copyright  Case)  (i). 

[Caption.'] 

This  cause  came  on  to  be  heard  this day  of , 

upon  the  bill,  and  answer,  and  the  master's  report,  and  was  ar- 
gued by  counsel;  on  consideration  whereof,  it  is  ordered, 
adjudged,  and  decreed  by  the  court  that  the  master's  report 
be,  and  the  same  hereby  is  approved  and  confirmed ;  and 
thereupon  it  is  further  ordered,  adjudged,  and  decreed 
by  the  court  that  the  said  defendants  be,  and  they  hereby 
are  severally  and  perpetually  restrained  and  enjoined  from 
printing,    selling,     publishing,    or    exposing     to    sale,    or 


COPYRIGHTS   AND   TRADE-MARKS.  39I 

causing,  or  being  in  any  way  concerned  in  the  printing, 
publishing,  selling,  or  exposing  to  sale  of  any  copy  or 
copies  of  the  whole  or  any  part  of  the  [three  hundred  and 
fifty]  pages,  copied  as  reported  by  the  master,  in  said  [state 
7tame  of  book  or  publication^  mentioned  in  the  bill  and  an- 
swer, published  by  the  defendants  from  [said  book  or  publica- 
tion\y  mentioned  in  the  bill  and  answer,  published  by  the 
plaintiffs,  the  plaintiffs  waiving  the  account  prayed  for  in 
the  bill,  the  court  does  not  order  such  account. 

(i)  Folsom  vs.  Marsh,  2  Story  C.  C,  100.    Consult  also  forms  of  de- 
crees under  titles  "  Patents  "  and  "  Equity." 


No.  434. 

Final  Decree  (Trade-Mark  Case)  (i). 

[Caption.^ 

This   cause  came  on  to   be  heard  this day  of 

upon  the  bill,  answer,  and  proofs  in  the  cause,  and  was  ar- 
gued by  counsel  on  behalf  of  the  plaintiffs,  no  counsel 
appearing  for  the  defendants  (the  counsel  who  had  previously 
appeared  for  them  having  voluntarily  withdrawn  from  the 
cause). 

On  consideration  whereof,  it  is  ordered,  adjudged,  and 
decreed  by  the  court  that  a  perpetual  injunction  be  granted 
in  the  premises  according  to  the  prayer  of  the  bill,  and  that 
the  plaintiffs  do  recover  costs  against  the  defendants,  to  be 
taxed  by  the  clerk  under  the  direction  of  the  court. 

(i)  Taylor  vs.  Carpenter,  3  Story,  C.  C,  458.  Consult  also  forms  of 
decrees  under  titles  "  Patents  "  and  "  Equity." 


No.  435. 

Final  Decree— Trade-Mark  Case  (Another  Form)  (i). 
This  cause  came  on  to  be  heard  this day  of  — 


upon  the  pleadings  and  proofs  in  the  case,  and  was  argued  by 
counsel  on  behalf  of  the  defendant  as  well  as  of  the  plaintiff, 
and  due  consideration  being  had  thereof,  it  is  ordered,  ad- 


392  COPYRIGHTS   AND   TRADE-MARKS. 

judged,  and  decreed,  and  this  court  by  virtue  of  the  power 
therein  vested,  does  order,  adjudge,  and  decree  that  the 
defendant,  C.  D.,  his  attorneys,  servants,  and  agents  be,  and 
they  are  hereby  perpetually  enjoined  and  restrained  from 
making,  devising,  or  causing  to  be  made  or  devised,  purchas- 
ing or  procuring  any  marks,  stamps,  labels,  or  tickets  de- 
scribed in  the  bill  of  complaint  in  this  action  as  in  use  by 
the  defendant  upon  tickings  possessed  and  sold  by  him,  and 
that  they  be  in  like  manner  enjoined  and  restrained  from 
using  the  said  marks,  stamps,  labels,  or  tickets  upon  any 
ticking  whatever  in  their  possession,  or  under  their  control, 
or  offered  or  kept  for  sale  by  them,  or  on  their  account  or  for 
their  benefit.  And  that  they  be  in  like  manner  enjoined  and 
restrained  from  selling,  keeping,  or  offering  for  sale,  any 
tickings  bearing  thereon  any  such  stamp,  mark,  label,  or 
ticket.  And  that  they  be  in  like  manner  enjoined  and  re- 
strained from  making,  devising,  or  causing  to  be  made  or 
devised,  purchasing  or  procuring,  or  in  any  way  or  manner 
using  for  or  upon  any  tickings  whatever,  any  stamp,  mark, 
label,  or  ticket  similar  to  the  said  stamp,  mark,  label,  or 
ticket  of  the  plaintiff,  or  having  thereon  the  letters  A.  C.  A., 
or  being  in  any  manner  an  imitation,  whether  in  whole  or  in 
part,  of  the  said  stamp,  mark,  label,  or  ticket  of  the  plaintiff. 
And  that  they  be  in  like  manner  enjoined  and  restrained 
from  selling,  keeping,  or  offering  for  sale  any  tickings  as  the 
real  A.  C.  A.  tickings  which  are  not  so,  and  for  that  purpose, 
from  resorting  to  any  device,  deceit,  fraud,  or.  misrepresenta- 
tion whatever,  by  the  use  of  any  stamp,  mark,  label,  or 
ticket,  or  otherwise.  And  that  they  be  in  like  manner  en- 
joined and  restrained  from,  in  any  manner,  using  the  letters 
A.  C.  A.  on  goods,  or  on  the  wrappers  or  covering  thereof, 
(i)  Taken  from  the  record  in  Amoskeag  Mfg.  Co.  vs.  Spear,  2  Sand. 
S.  C,  599.  

No.  436. 

I 

"Writ  of  Injunction 

See  Nos.  61  and  402. 


CRIMINAL  PROCEEDINGS. 


BEFORE  U.  S.  COMMISSIONERS. 


No.  437. 

Affidavit  of  Complaint  (i). 

The  United  States  of  America, 
District  of ,  City  of ,  ss. 


Before  me,  J.  N.,  a  commissioner  of  the  circuit  court  of 

the  United  States  for  the district  of ,  personally 

appeared  this  day  E.  P.,  who  being  first  duly  sworn,  deposes 

and  says  that  on  the day  of ,  1894,  at ,  in  the 

district  aforesaid,  L.  H.,  in  violation  of  Section ,  U.  S. 

Rev.  Statutes,  did  unlawfully,  knowingly,  and  willfully,  [or^ 
feloniously],  [^kere  state  the  facts  necessary  to  constitute  an  of- 
fense against  the  laws  of  the  United  States,  as,  for  example, 
"  misapplied  the  funds,  moneys,  and  credits  of  a  banking 

association,  to  wit,  the National   Bank,  an  association 

duly  incorporated  under  the  banking  laws  of  the  United 
States,  in  this,  to  wit,  that  the  said  L.  H.,  president  of  the 
said  association,  did,  then  and  there,  without  the  authority 
of  the  directors  of  said  association,  issue  certain  certificates 

of  deposit,  to  wit,  one  certificate  of  deposit.  No. ,  for  the 

sum  of  $ ,  issued  to  himself,  with  intent  then  and  there 

to  injure  and  defraud  the  said  association  "],  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

E.  P. 

Sworn  to  before  me  and  subscribed  to   in  my  presence 

this day  of ,  1894.  J.  N., 

Commissioner  of  the  Circuit  Court  of  the 

[6'(^/2/.]  United  States  for  the District  of , 

393 


394  CRIMINAL    PROCEEDINGS. 

No.  438. 

"Warrant  of  Arrest. 

The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the  United  States  for  the District  of ;;-, 

and  his  Deputies,  or  any  or  either  of  them: 

Whereas  complaint  on  oath  and  in  writing  has  been  made 

before  me,  a  commissioner  of  the  circuit  court  for  the 

district  of ,  charging  that  L.  H.   did,  on  or  about  the 

day  of ,  in  the  year  of  our  Lord   i8 — ,  at ,  in 

said  district,  unlawfully  and  willfully,  etc.  [according  to  the 
facts  set  forth  in  the  affidavit']  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  United  States  ; 

Now,  therefore,  you  are  hereby  commanded  in  the  name 
of  the  President  of  the  United  States  to  apprehend  the  said 
L.  H.  and  bring  his  body  forthwith  before  me,  or  any  other 
commissioner  having  jurisdiction  of  the  case,  to  answer  the 
said  complaint  and  to  be  dealt  with  according  to  law  for  the 
said  offense. 

Given  under  my  hand  and  seal  this day  of ,  in 

the  year  of  our  Lord  i8 — .  J.  N., 

Commissioner  of  the  Circuit  Court  of  the 

[6<?<ar/.]  United  States  for  the District  of . 

Approved. 
J.  H., 

U.  S.  Attorney. 


No.  439. 

Temporary  Recognizance. 

The  United  States  of  America, 
District  of ,  City  of ,  ss. 


Be  it  remembered  that  on  this  day  of  ,  1894, 

before  me,  J.  N.,  a   commissioner   duly  appointed  by  the 


BEFORE   U.  S.  COMMISSIONERS.  395 

circuit  court  of  the  United  States  for  the  said district 

of ,  personally  came  L.  H.  as  principal,  and  B.  H.,  E.  F., 

and  G.  H.  as  sureties,  and  jointly  and  severally  acknowledged 
themselves  to  owe  the  United  States  of  America  the  sum  of 

dollars,  to  be  levied  on  their  goods  and  chattels,  lands 

and  tenements,  if  default  be  made  in  the  condition  following, 
to  wit: 

The  condition  of  this  recognizance  is  such,  that  if  the 
said  L.  H.  shall  personally  appear  before  me,  J.  N.,  a  com- 
missioner as  aforesaid,  at  my  office,  No. street,  in 

the  city  of ,  on  the  day  of  ,  to  answer  the 

charge  of  [name  crime  charged\  and  then  and  there  abide 
the  order  of  said  commissioner,  and  not  depart  from  said 
district,  then  this  recognizance  to  be  void;  otherwise  to 
remain  in  full  force  and  virtue.  B.  H. 

E.  F. 
G.  H. 

Taken  and  acknowledged  before  me  on  the  day  above 
written.  J,  N., 

[6^<2/.]  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 


No.  440. 

Justification  of  Surety  to  Bond. 

The  United  States  of  America, 
District  of ,  City  of ,  ss. 


B.  H.,  of  No. street,  in  the  city  of ,  in  said  dis- 
trict, and  E.  F.,  of  No. street,  in  the  city -of  ,  in 

said  district,  and  G.  H.,  of  No. street,  in  the  city  of 

,  in  said  district,  sureties  on  the  foregoing  recognizance, 

make  oath,  and  say  each  for  himself,  that  he  is  a  free-holder 

in  the  city  of ;  that  he  is  worth  the  sum  of  $ ,  over 

and  above  his  just  debts  and  liabilities,  in  property  subject 


396  CRIMINAL    PROCEEDINGS. 

to  execution  and  sale,  and  that  his  property  consists  of  [here 
state  the  property  of  each  surety  separately^  B.  H. 

E.  F. 
G.H. 

Sworn  to  before  me  this day  of ,  1894. 

J.N, 
[Seal^  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 


No.  441. 

Release  of  Sureties  (i). 

\In  case  the  sureties  wish  to  surrender  their  principal  the 

following  indorsement  should  be  made  on  the  bond  given  above  f\ 

The  defendant,  L.  H.,  surrendered  on   this  bond  by  his 

sureties,  and  accepted  by  the  United  States  attorney,  and  the 

sureties  are  hereby  released  this day  of ,  1894. 

J.N. 
[5^^/.]  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 

(i)  See  R.  S.,  Sec.  1018;  Desty's  Fed.  Proc,  Sec.  551. 


No.  442. 

Final  Recognizance  for  Appearance  Before  Circuit  or 
District  Court. 

The  United  States  of  America, 
District  of ,  City  of ,  ss. 


Be   it   remembered   that  on   this day  of ,  1894, 

before  me  J.  N.,  a  commissioner  duly  appointed  by  the  cir- 
cuit court  of  the  United  States  for  the  said district  of 

personally  came  L.  H.,  as  principal,  and  B.  H.,  E.  F., 

and  G.  H.,    as  sureties,  and  jointly  and  severally  acknowl- 


BEFORE   U.  S.  COMMISSIONERS.  397 

edged  themselves  to  owe  the  United  States  of  America  the 

sum  of  $ to  be  levied  on  their  goods  and  chattels,  land 

and  tenements,  if  default  be  made  in  the  condition  following, 
to  wit: 

The  condition  of  this  recognizance  is  such  that  if  the  said 
h.  H.  shall  personally  appear  before  the  circuit  court  of  the 

United  States  for  the district  of ,  held  in  the  city 

of ,  in  the  district  aforesaid  on  the  first  day  of  the  next 

regular  term,  then  and  there  to  answer  the  charge  of  [here 
set  forth  offense  charged  in  the  affidavit]^  and  then  and  there 
abide  the  order  of  the  said  court  and  not  depart  from  said 
district  without  leave,  then  this  recognizance  to  be  void, 
otherwise  to  remain  in  full  force  and  virtue. 

L.  H. 
B.  H. 
E.  F. 
G.  H. 
Taken  and  acknowledged  before  me  on  the  day  above 
written.  J.  N., 

[Seal.^  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 

\For  justification  of  sureties^  see  No.  440.] 


No.  443. 

Temporary  Mittimus. 

The  United  States  of  America, 
—  District  of ,  City  of ,  ss. 


The    President   of  the   United  States  of  America    to    the 

keeper  of  the  jail  in County,  of  the  State  of , 

Greeting : 
Whereas  L.  H.  has  been  arrested  upon  the  oath  of  E.  P., 

for  having  on  or  about  the day  of ,  1894,  at , 

in  the  district  aforesaid,  unlawfully  \here  set  forth  the  offense 
charged  in  the  affidavit^  and  has  not  been  examined  by  me> 


398  CRIMINAL   PROCEEDINGS. 

J.  N.,  a  commissioner   of  the  circuit   court   of  the  United 

States  for  the district  of ,  and  has  been  required  to 

give  bail  in  the  sum  of dollars  for  his  appearance  before 

me  on  the day  of ,  at  ten  o'clock  a.  m,,  with  which 

requisition  he  has  failed  to  comply ;  this  is  therefore  to  com- 
mand you  in  the  name  and  by  the  authority  aforesaid  to 
receive  the  said  h.  H.,  prisoner  of  the  United  States  of 
America  in  the  jail  of  said  county,  there  to  remain  until  he 
be  discharged  by  due  course  of  law. 

Given  under  my  hand  and  seal  in  the  district  aforesaid  on 
the day  of ,  1894.  J.  N., 

[Seal.l  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 


No.  444. 

Final  Mittimus. 

The  United  States  of  America, 
—  District  of ,  City  of ,  ss. 


The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  said  District,  and  to  the  keeper  of  the  jail  in 

County,  of  the  State  of ,  Greeting : 

Whereas  L.  H.  has  been  arrested  on  the  oath  of  E.  P.  for 
having  on  or  about  the day  of ,  at ,  in  the  dis- 
trict aforesaid,  unlawfully,  etc.,  [^kere  set  forth  the  offense 
charged  in  the  affidavit^  and  has  been  examined  by  me,  J. 
N.,  a  commissioner  of  the  circuit  court  of  the  United  States 

for  the  said district  of ,  upon  the  aforesaid  charge, 

and  it  appearing  to  me  that  said  offense  has  been  commit- 
ted, and  probable  cause  shown  to  believe  said  L.  H.  com- 
mitted said  offense,  and  said  L.  H.  has  been  required  to  give 

bail  in  the  sum  of dollars  for  his  appearance  at  the  first 

day  of  the  next  regular  term  of  the court  for  the 

district  of ,  at ,  which  requisition  he  has  failed  to 

comply  with. 


BEFORE    U.  S.  COMMISSIONERS.  399 

This  is  therefore  to  command  you,  in  the  name  and  by 
the  authority  aforesaid,  to  commit  the  said  L.  H.  to  the  cus- 
tody of  the  jailer  of  said  county,  and  you,  the  keeper  of  said 
jail  in  said  county,  to  receive  the  said  L.  H.,  prisoner  of 
the  United  States  of  America,  in  the  jail  of  said  county, 
there  to  remain  until  he  be  discharged  by  due  course  of 
law. 

Given  under  my  hand  and  seal  in  the  said  district  afore- 
said this day  of ,  1894.  J.  N., 

[►Slf^/.]  Commissioner  of  the  Circuit  Court 

of  the  United  States^for  the 

District  of . 


No.  445. 
Return  by  the  Marshal  on  the  above  Mittimus. 

Received  this  mittimus,  with  the  within-named  prisoner, 
on  the day  of ,  1894,  and  on  the  same  day  I  com- 
mitted the  said  prisoner  to  the  custody  of  the  keeper  within- 
named,  with  whom  I  left  at  the  same  time  a  certified  copy 
of  this  mittimus.  H.  C, 
United  States  Marshal  for  the District  of . 

Dated . 


No.  446. 

Recognizance  of  Witnesses. 

The  United  States  of  America, 
District  of ,  City  of ,  ss. 


Be  it  remembered   that  on  this day  of ,  1894, 

before  me,  J.  N.,  a  commissioner  of  the  circuit  court  of  the 

United  States  for  the district  of ,  personally  came 

[sel  forth  names  of  witnesses] ,  and  acknowledged  themselves 
to  owe  and  be  indebted  to  the  United  States  of  America  in 

the  full   and  just  sum  of dollars,  to  be  levied  on  their 

goods   and  chattels,  lands  and  tenements,  if  default  should 
be  made  in  the  conditions  following: 


400  CRIMINAL    PROCEEDINGS. 

The  conditions  in  this  recognizance  are  such  that  if  the 
above-named [here  insert  names  of  witnesses\ ,  shall  per- 
sonally appear  before  the  district  \or^  circuit]  court  of  the 

United  States  for  the district  of  • ,  on  the  first  day 

of  its  next  term  thereof,  to  be  begun  and  held  at ,  in  the 

said  district,  then  and  there  to  testify  in  a  cause  wherein  the 
United  States  are  plaintiffs,  and  L.  H.  is  defendant,  on  the 
behalf  of  the  United  States,  and  shall  not  at  any  time  be  ab- 
sent from  said  court  without  leave,  then  this  recognizance  to 
be  void  ;  otherwise  to  remain  in  full  force  and  virtue. 

In  testimony  whereof  the  obligors  have  hereunto  set  their 
hands  the  day  and  year  above  written. 

Signature  of  witnesses :  .     [►S(^«/.] 

.     [5"^«/.] 

.     \Seal^ 

Subscribed  in  my  presence  and  acknowledged  before  me 

this day  of ,  1894.  J.  N., 

United  States  Commissioner  for  the 
[5*^^/.]  District  of . 


No.  447. 

Subpoena  for  Witnesses. 

The  United  States  of  America, 
District  of ,  City  of . 


The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the District  of : 

You  are  hereby  commanded  to  summon  J.  K.,  L.  M.,  and 
W.  C,  if  they  are  to  be  found  in  your  district,  to  be  and  ap- 
pear before  me,  J.  N.,  a  commissioner  of  the  circuit  court  of 

the  United  States  for  the district  of aforesaid,  at 

my  office.  No. , street,  in  the  city  of ,  state  of 

,  on  the day  of ,  1894,  at  ten  o'clock  a.  m.,  to 

give  testimony  and  the  truth  to  say  in  a  cause  pending  be- 
fore me,  wherein  the  United  States  are  plaintiffs,  and  L.  H. 
defendant,  in  behalf  of  the  United  States;  hereof  fail  not, 


BEFORE    U.  S.  COMMISSIONERS.  4OI 

under  penalty  of  the  law,  and  have  you  then  and  there  this 
writ. 

Given  under  my-hand  and  seal  this day  of ,  1894. 

J.N., 
^      [^l^^/.]  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 


No.  448. 

Affidavit  of  Attendance. 

The  United  States  of  America, 
District  of ,  ss. 

Before  me,  J.  N.,  a  commissioner  of  the  circuit  court  of 

the  United  States  for  the district  of ,  personally 

came  M.  H.,  who  makes  oath  and  says  that  he  has  attended 
the  examination  in  the  cause  of  the  United  States  against  L. 
H.,  charged  with  [murder,  embezzling  money,  or  as  it  may 

de],  as  witness  in  behalf  of  the  United  States, days; 

that  he  resides miles  from  the  place  where  said  exami- 
nation was  held,  for  which  attendance  and  mileage  while 
traveling  to  and  returning  from  said  examination  he  claims 
the  compensation  allowed  by  law.  M.  H. 

Sworn  to  and   subscribed  to  before  me  this day  of 

,  1894.  J.  N., 

[5<?a/.]  United  States  Commissioner. 


No.  449. 

Order  to  Pay  Witness. 

The  United  States  ^ 

vs.  y   [  The  charge  against  the  defendant^ 

L.  H.  j 

This  is  to  certify  that  the  several  persons  hereinafter 
named  have  attended  before  me  as  witnesses  in  behalf  of  the 
United  States  in  the  above-entitled  cause,  and  that  they  are 


402  CRIMINAL    PROCEEDINGS. 

entitled  to  receive  from  the  United  States  the  sum  set  oppo- 
site their  respective  names,  for  attendance  and  mileage, 
which  said  sum  the  marshal  is  hereby  ordered  to  pay  the 
said  witnesses. 

[Here  should  follow  the  names  of  the  witnesses  who  at- 
tended^ number  of  m.iles  traveled^  amount  due^  and  should  be 
signed  below  by  the  commissioner  with  his  official  seal  and 
titled  

No.  450. 

Transcript  from  Commissioner. 

Before   J.  N.,  Commissioner  J.  H., 

of  the  Circuit  Court  of  the  Attorney  for  the  United 

United  States  for  the  States. 

District  of . 


The  United  States 

vs. 

L.  H. 


J.W., 

Attorney  for  the  Defendant. 


Two  affidavits  and  complaints  of  E.  P.  taken  and  filed, 

charging  that  on  or  about  the  day  of ,  1894,  at 

,  in  the district  of ,  the  said  ly.  H.,  defendant 

herein,  did  violate  Sections  of  the  United  States  Re- 
vised Statutes,  contrary  to  the  form  of  the  statute,  etc. 

June  21,  18 — ,  issued  warrant  for  arrest  of  defendant  to 
United  States  marshal. 

June  22,  18 — ,  issued  three  subpoenas  for  witnesses  to 
United  States  marshal. 

June  21,  18 — ,  warrant  returned,  executed  by  arrest  of  de- 
fendant at  ,  in  the  district  of ,  on  the  21st  day  of 

June,  18 — . 

June  21,  18 — ,  defendant  present  in  court,  waived  exam- 
ination;  bail  fixed  at  $ . 

June  22,  18 — ,  defendant  present  in  court;  arrested  upon 
second  warrant. 

[Continue  with  docket  entries  of  all  proceedings  before  the 
commissioner^  after  which  follows  the  transcript  of  the  record 
before  said  commissioner^  and  conclude  as  follows  f\ 


BEFORE    U.  S.  COMMISSIONERS.  403 

^he  United  States  of  America, 
District  of . 

I,  J.  N.,  a  commissioner  of  the  circuit  court  of  the  United 
States  in  and  for  the  said  district,  do  hereby  certify  that  the 
foregoing  writing  is  a  true  transcript  of  the  entries  on  my 
docket  in  the  cause  therein  named,  and  the  process,  writs, 
and  papers  in  said  cause  are  hereby  returned  unto  the  circuit 

court  of  the  United  States  for  the  district  of in 

pursuance  of  law. 

In  witr^ess  whereof  I  hereunto  set  my  hand  and  seal  at 

my  office,  in  ,  in  said  district,  this  day  of , 

1894.  J.N, 

[►S<?«/.]  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 


No.  451. 

Affidavit  for  Search  Warrant  (Internal  Revenue). 

The  United  States  of  America, 
District  of ,  ss. 

Be  it  remembered,  that  on  this  day,  before  me,  J.  N.,  a 
commissioner  of  the  circuit  court  of  the  United  States  for 

the district  of ,  came  A.  B.,  who  being  by  me  duly 

sworn,  deposes  and  says  that  he  has  good  reason  to  believe, 
and  does  verily  believe,  that  a  fraud  upon  the  revenue  of  the 
United  States  has  been  and  is  being  committed  upon  and 
by  use   of  a  certain   \state  the  facts  as  may  be\  being  the 

premises  of  G.  W.,  and  being  situate  in  the  city  of ,  in 

the  county  of ,  and  state  of ,  and  within  the  district 

above-named.  A.  B. 

Sworn  to  before  me,  and  subscribed  to,  in  my  presence 
this day  of ,  1894.  J.  N., 

[Seal.^  Commissioner  of  the  Circuit  Court  of  the 

United  States  as  aforesaid 


404  CRIMINAL   PROCEEDINGS. 

No.  452. 

Search  Warrant  (Internal  Revenue). 

The  United  States  of  America, 

District  of ,  ss. 

To  S.  W.,  Internal  Revenue  Officer  of  the  United  States  for 

the District  of ,  and  to  his  Deputies,  or  any  of 

them: 

Whereas  complaint  on  oath,  and  in  writing,  has  this  day 
been  made  before  me,  J.  N.,  a  commissioner  of  the  circuit 
court  of  the  United  States  in  and  for  the  said  distVict,  by  A. 
B.,  alleging  that  he  has  reason  to  believe  that  a  fraud  upon 
the  revenue  of  the  United  States  is  being  committed,  upon 
and  by  use  of  a  certain  [state  facts  as  in  affidavit^  being  the 

premises  of  G.  W.,  and  being  situate  in  the  city  of , 

in  the  county  of ,  and  state  of ,  and  within  the  dis- 
trict above  named. 

You  are  therefore  hereby  commanded,  in  the  name  of  the 
President  of  the  United  States,  to  enter  said  premises  with 
the  necessary  and  proper  assistance,  and  there  diligently  to 
investigate  and  search  into  and  concerning  said  fraud,  and  to 
report  and  act  concerning  the  same  as  required  by  law. 

Given  under  my  hand,  on  this day  of ,  1894. 

\SeaL'\  J.  N., 

Commissioner  of  the  Circuit  Court  of  the 
United  States  as  aforesaid. 


No.  453. 

Affidavit  for  Search  Warrant  under  Act  of  July  10,  1891. 

The  United  States  of  America, 

District  of ,  ss. 

Be  it  remembered,  that  on  this  day,  before  me,  J.  N.,  a 
•commissioner  of  the  circuit  court  of  the  United  States  for  the 

district  of ,  came  A.  B.,  who,  being  by  me  duly 

sworn,  deposes  and  says  that  he  has  good  reason  to  believe. 


BEFORE   U.  S.  COMMISSIONERS.  4O5 

and  does  verily  believe,  that  the  manufacture  of  counterfeit 
money,  and  the  concealment  of  counterfeit  money,  and  the 
.manufacture  and  concealment  of  counterfeit  obligations  and 
coins  of  the  United  States  [or  any  foreign  government^  naming 
it\^  and  the  manufacture  and  concealment  of  dies,  hubs, 
molds,  plates,  and  other  things  fitted  and  intended  to  be 
used  for  the  manufacture  of  counterfeit  money,  coins,  and  ob- 
ligations of  the  United  States  \or  any  foreign  government^ 
naming  it;  or^  of  a  bank  doing  business  under  the  authority 
of  the  United  States,  or  of  any  state  or  territory^  naming  it; 
or.,  of  a  bank  doing  business  under  the  authority  of  a  foreign 
government ;  <9r,  of  a  political  division  of  a  foreign  govern- 
ment in  \  is  being  carried  on  and  practiced  upon  the 

premises  of  G.  W.,  and  being  situate  in  the  city  of ,  in 

the  county  of ,  and  state  of ,  and  within  the  district 

above  named.  A.  B. 

Sworn  to  before  me,  and  subscribed  in  my  presence,  this 
day  of ,  1894.  J.  N., 

[►S<?«/.]  Commissioner  of  the  Circuit  Court  of  the 

United  States  as  aforesaid. 


No.  454. 

Search  Warrant  under  Act  of  July  10,  1891. 

The  United  States  of  America, 

District  of ,  ss. 

To  the  Marshal  of  the  United  States  for  the District  of 

,  or  to \naming  the  special  deputy\ : 

Whereas  complaint  on  oath,  and  in  writing,  has  this  day 
been  made  before  me,  J.  N.,  a  commissioner  of  the  circuit 
court  of  the  United  States  in  and  for  the  said  district,  by  A. 
B.,  alleging  that  he  has  reason  to  believe  and  does  believe 
that  \siate  the  facts  as  in  affidavit^  being  the  premises  of  G. 

W.,  and  being  situate  in  the  city  of ,  in  the  county  of 

,  and  state  of ,  and  within  the  district  above  named. 


406  CRIMINAL    PROCEEDINGS. 

You  are  therefore  hereby  commanded,  in  the  name  of  the 
President  of  the  United  States,  to  enter  said  premises  with 
the  necessary  assistance,  in  the  daytime  only,  and  there 
search  for  any  such  counterfeit  money,  coins,  dies,  hubs, 
molds,  plates,  and  other  things,  and  of  any  such  obligations, 
and  if  any  such  be  found,  to  seize  and  secure  the  same,  and 
to  make  return  thereof  to  the  proper  authority. 

Given  under  my  hand  and  seal  this day  of ,  1894. 

[Seal.]  J.  N., 

Commissioner  of  the  Circuit  Court  of  the 
United  States  as  aforesaid. 


No.  455. 

Seaman's  Wages.     Proceedings  Before  Commissioner, 
For  forms,  see  under  title  "Admiralty." 


POOR   CONVICT.  407 


POOR  CONVICT. 

No.  456. 

Application  for  Discharge  (i). 

The  United  States  of  America, 
District  of . 


'  I  Application    for    discharge    from    im- 
y    Vt  I      prisonment  under  R.  S.,  Sec.  1042. 

To  J.  N.,  a  Commissioner  of  the  Circuit  Court  of  the  United 
States  for  the District  of : 

Your  petitioner  represents  and  states  that  he  was  sen- 
tenced to  pay  a  fine  of  $ and  costs  by  the  district  [or, 

circuit]  court  of  the  United  States  for  the district  of 

;  that  he  has  been  imprisoned  for  thirty  days  in  the 

county  jail,  in  the  state  of ,  for  non-payment  of  such 

fine  and  costs,  and  that  he  is  unable  to  pay  the  same ;  where- 
fore he  hereby  makes  application  in  writing  for  discharge 
from  imprisonment  in  the county  jail,  under  the  pro- 
visions of  Section  1042  of  the  Revised  Statutes  of  the  United 
States.  L.  H., 

Dated  this day  of ,  1894.  Applicant. 

(i)  See  Desty's  Fed.  Proc.,  Sec.  578. 


No.  457. 

Mandate  to  Jailer  to  Produce  Prisoner. 

The  United  States  of  America, 
District  of . 


The  United  States  of  America  to  the  Jailer  of County, 

Greeting : 
Whereas  L.  H.  has  this  day  made  an  application  in  writ- 
ing before  J.  N.,  a  commissioner  of  the  circuit  court  of  the 


408  CRIMINAL    PROCEEDINGS. 

United  States  for  the  district  aforesaid,  for  a  discharge  from 

imprisonment  in  the county  jail,  in  the  state  of , 

under  the  provisions  of  Section  1042  of  the  Revised  Statutes 
of  the  United  States. 

This  is  therefore  to  command  you  to  produce  the  body  of 
said  L.  H.  forthwith  before  me,  J.  N.,  a  commissioner  of  the 

circuit  court  of  the  United  States  for  the  district  of 

,  at  No. street,  in  the  city  of ,  in  said 

district,  and  the  marshal  of  the  district  aforesaid  is  directed 
to  execute  this  mandate. 

In  witness  whereof  I  hereunto  set  my  hand  and  seal  this 
day  of ,  1894.  J.  N,, 

[6<?a/.]  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 


No.  458. 
Oath  of  Poor  Convict  (z). 

The  United  States  of  America, 

District  of . 

The  United  States, )   *      r     ^-        r       j-    i.  r 

'  { Application    for    discharge    from    im- 

j    xy  I      prisonment  under  R.  S.,  Sec.  1042. 

I,  L.  H.,  do  solmenly  swear  that  I  have  not  any  property, 
real  or  personal,  to  the  amount  of  $20.cx),  except  such  as  is 
by  law  exempt  from  being  taken  on  civil  precept  for  debt 
by  the  laws  of  [siale  where  oath  is  administer ed^^  and  that  I 
have  no  property  in  any  way  conveyed  or  concealed,  or  in 
any  way  disposed  of,  for  my  future  use  or  benefit,  so  help 
me  God.  L.  H. 

Subscribed  and  sworn  to  before  me  this day  of , 

1894-  J.  N., 

[►S(?<a!/.]  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

'  District  of . 

(i)  This  form  of  oath  is  prescribed  by  statute.  See  R.  S.,  Sec.  1042; 
Desty's  Fed.  Proc.,  Sec.  578. 


POOR   CONVICT.  409 

No.  459. 

CertiRcate  of  Discharge. 

The  United  States  of  America, 
District  of . 

'  I  Application    for    discharge    from   im- 
y    |\-  I      prisonment  under  R.  S.,  Sec.  1042. 

It  appearing  to  me,  J.  N.,  a  commissioner  of  the  circuit 
court  for  the district  of ,  that  L.  H.,  the  above- 
named  defendant,  has  been  imprisoned  in  the county 

jail  for  the  period  of  30  days,  solely  for  the  nonpayment  of 
a  fine  and  costs  adjudged  against  him  by  the  district  [or,  cir- 
cuit] court  of  the  United  States  for  the district  of , 

and  that  he  is  unable  to  pay  the  same,  and  has  complied 
with  all  the  requirements  of  law,  it  is  therefore  ordered  that 
said  L.  H.  be  discharged  from  further  imprisonment,  and  go 
hence  without  day.  J-  N., 

[&«/.]  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 

Dated  this day  of ,  1894. 


4IO  CRIMINAL    PROCEEDINGS. 


EXTRADITION. 

No.  460. 

Complaint  for  W^arrant  (i). 

The  United  States  of  America, 
District  of ,  ss. 

On  this day  of ,  personally  appeared  before  me, 

J.  N.,  a  commissioner  of  the  circuit  court  of  the   United 

States  for  the district  of ,  and  duly  authorized  by 

the  said  court  to  issue  warrants  for  the  extradition  of  fugi- 
tives from   justice  of   foreign  governments,  A.  B.,  of , 

who  makes  solemn  oath,  and  says  that  L.  H.  did,  on  the 
day  of ,  at ,  within  the  jurisdiction  and  gov- 
ernment   of ,  commit    the  crime  of   murder  [or  as  the 

case  may  be] ,  in  that  he  did,  on  the  said day  of ,  at 

the aforesaid,  [here  set  forth  facts  sufficient  to  constitute 

an  offense  under  the  treaty] ,  against  the  peace  and  govern- 
ment of  said ;    that  the  said  L.  H.  is  now  a  fugitive 

from  the  justice  of  the  said  government  of ,  and  that  he 

did,  on  or  about  the day  of ,  flee  into  and  is  now 

found  within  the  limits  of  this  judicial  district. 

A.  B. 

Subscribed  and  sworn  to  before  me  on  the  day  and  year 

first  mentioned  above,  at  my  office,  No. street,  in 

the  city  of ,  in  the  district  aforesaid.  J.  N., 

[Seal^  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 

(i)  See  Desty's  Fed.  Proc,  Sec.  585,  et  seq.;    R.  S.,  Sec.  5270,  et  seq. 


EXTRADITION.  4II 

No.  461. 

E«tradition  W^arrant  (i). 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the District  of ,  Greeting: 

Whereas  complaint  on  oath  and  in  writing  has  this  day 
been  made  by  A.  B.  before  me,  J.  N.,  a  commissioner  of  the 

circuit  court  of  the  United   States  for  the district  of 

,  duly  authorized  by  the  said  court  to  issue  warrants  for 

the  extradition  of  fugitives  from  justice  of  foreign  govern- 
ments, wherein  it  is  alleged  that  L.  H.  did  on  the day 

of ,  1894,  at  ,  within  the  jurisdiction  and  govern- 
ment of ,  commit  the  crime  of   murder  [or  as  the  case 

may  be\  in  that  he  did  then  and  there  [set  forth  the  words  of 
the  complaint  with  reference  to  the  facts  constituting  the  of- 
fense^ ,  against  the  peace  and  government  of  the  said  gov- 
ernment of ,  and  that  the  said  L.  H.  is  now  a  fugitive 

from  justice  of  said ,  and  is  now  within  the  limits  of 

this  judicial  district ;  and  whereas  it  appears  to  me  that  a 
treaty  or  convention  exists  between  the  government  of  the 
United  States  and  the  government  of for  the  extradi- 
tion of  fugitives  from  justice,  and  that  the  crime  of  murder, 
with  which  the  said  L.  H.  is  charged,  is  embraced  in  the 
terms  of  said  treaty  or  terms  of  extradition. 

These  are  therefore  to  command  you  forthwith  to  appre- 
hend the  said  L.  H.,  and  to  bring  him  before  me,  to  be  dealt 
with  according  to  law  and  the  provisions  of  said  treaty  of  ex- 
tradition. 

Given  under  my  hand  and  seal  this  day  of , 

1894,  at  my  office,  No. street,  in  the  city  of , 

in  the  district  aforesaid.  J.  N., 

[Seal^  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 

(i)  See  note  to  No.  460. 


412  CRIMINAL    PROCEEDINGS. 

No.  462. 

Final  Commitment  (i). 

The  United  States  of  America,  In  the  matter  of 

District  of ,  ss.  the  extradition  of  L.  H. 

This  cause  coming  on  to  be  heard  this day  of , 


1894,  before  me,  J.  N.,  a  commissioner  of  the  circuit  court  of 

the  United  States  for  the district  of ,  on  requisition 

presented  by  \here  state  the  name  and  official  character^  as  F. 
Z.,  Consul  at  the  port  of  Cincinnati  for  the  Republic  of 
France\  that  the  said  L<.  H.  be  committed  for  the  purpose  of 
being  delivered  up  as  a  fugitive  from  justice  pursuant  to  the 

provisions  of  a  treaty  dated  the day  of ,  and  made 

between  the  government  of  the  United  States  and  that  of 
France,  and  a  hearing  being  had,  and  evidence  produced,  I 
find  and  adjudge  that, the  evidence  produced  against  the  said 
L.  H.  is  sufficient  in  law  to  justify  his  commitment  on  the 
charge  of  [here  set  forth  the  crime  charged^  had  the  crime 
been  committed  within  the  United  States.  I  therefore 
order  that  the  said  L.  H.  be  committed  pursuant  to  the  pro- 
visions of  the  treaty  aforesaid,  to  abide  the  order  of  the 
President  of  the  United  States  in  the  premises. 

Given  under  my  hand  and  seal  at  the  city  of ,  this 

day  of ,  1894.  J.  N., 

[►S^^/.]  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 

(I)  See  note  to  No.  460. 


No.  463. 

Certificate  of  Extradition  Proceedings  (i). 

The  United  States  of  America,  In  the  matter  of  the  Ex- 

District  of ,  ss.  tradition  of  L.  H. 

I,  J.  N.,  a  commissioner  of  the  circuit  court  of  the  United 

States  for  the district  of ,  being  duly  authorized  by 

the  said  court  to  issue  warrants  for  the  extradition  of  fugi- 
tives from  justice  of  foreign  governments,  do  hereby  certify 


EXTRADITION.  413 

that  a  complaint  was  duly  made  on  oath  and  in  writing 
before  me  by  A.  B.,  charging  L.  H.  with  having  committed 
the  crime  of  murder  [or  as  the  case  may  6e],  within  the 
jurisdiction  and  government  of ,  and  that,  being  a  fugi- 
tive from  justice  of  said  country,  I  thereupon  issued  my 
warrant  for  the  arrest  of  the  said  L.  H.,  directed  to  the  mar- 
shal of  the  United  States  for  the  said  district,  and  by  virtue 
thereof  the  said  L.  H.  was  by  the  marshal  arrested  and 
brought  before  me  for  examination  and  hearing  upon  said 
charge,  and  that  said  examination  and  hearing  was  held  on 

the day  of ,  1894,  at  my  office  at  No. street, 

in  the  city  of ,  and  that  R.  X.,  Esq.,  was  present  as 

counsel  for  the  [foreign  government]^  and  R.  Y.,  Esq.,  was 
present  as  counsel  for  the  prisoner,  and  that  the  evidence 
adduced  before  me  I  consider  sufficient  evidence  to  sustain 
the  charge  under  the  law  and  the  provisions  of  the  treaty  of 
extradition  between  the  government  of  the  United  States  and 
the  government  of  [foreign  power\  and  that  I  have  accord- 
ingly, by  my  warrant  under  my  hand  and  official  seal,  this 

day  of ,  1894,  committed  him  to  the county 

jail  in  the  city  of ,  to  await  the  order  of  the  President 

of  the  United  States  in  the  premises.     . 

I  further  certify  that  the  following  is  a  true  copy  of  the 
testimony  taken  before  me  on  said  hearing  and  examination 
[here  set  forth  the  testimony  infull\ 

Witness  my  hand  and  seal  this day  of ,  1894. 

J.  N., 

[^<p«/.]  Commissioner  of  the  Circuit  Court 

of  the  United  States  for  the 

District  of . 

(i)  See  note  to  No.  460. 


No.  464. 

Proceedings  where  Offender  is  Arrested  in  one  State  for 
Offense  Committed    in  another  State. — Before  Indict- 
ment (i). 
The  defendant  is  taken  before  the  nearest  commissioner, 

and  the  charge  read  to  him,  and  he  can  then  demand  a  pre- 


414  CRIMINAL    PROCEEDINGS. 

liminary  hearing  or  waive  examination  and  give  bail  for  his 
appearance  at  the  circuit  or  district  court  where  the  jury 
trial  is  to  be  held.  In  default  of  bail,  he  is  finally  committed 
by  the  United  States  commissioner  or  magistrate  to  jail,  and 
then  the  United  States  attorney,  provided  with  a  certificate 
from  the  commissioner  stating  the  above  facts,  and  a  copy 
of  the  final  mittimus,  applies  to  the  circuit  (or  district)  judge 
for  a  bench  warrant  of  removal. 

For  form  of  Bench  Warrant  for  Removal,  see  No.  466. 

(i)  See  R.  S.,  Sec.  1014. 

No.  465. 

Same — After  Indictment  (i). 

Same  proceeding  as  in  No.  464,  except  that  at  the  prelim- 
inary hearing  before  the  magistrate  or  United  States  com- 
missioner a  certified  copy  of  the  indictment  is  sufficient  evi- 
dence of  the  probable  cause  without  other  proof  of  the  com- 
mission of  the  crime.  The  only  fact  for  the  United  States 
commissioner  to  decide  is  the  question  of  the  identity  of  the 
prisoner  with  the  person  named  in  the  indictment. 

For  form  of  Bench  Warrant  for  Removal,  see  No  466. 

(i)  SeeR.S.,Sec.  1014. 


No.  466. 

Bench  Warrant  for  Removal  (R.  S.,  Sec.  10x4). 

The  United  States  of  America, 
District  of ,  ss. 


The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the  United   States  for  the District  of , 

and  to  his  Deputies,  or  any  or  either  of  them  : 
Whereas  L.  H.  has  been  brought  before  me  upon  a  com- 
mitment made  by  a  United  States  commissioner  in  this  dis- 
trict for  the  purpose  of  obtaining  a  warrant  for  the  removal 
of  the  said  L.  H.  to  the district  of ,  in  which  dis- 


EXTRADITION.  415 

trict  the  offense  for  which  said  prisoner  has  been  committed 
is  to  be  tried,  a  copy  of  which  commitment  is  hereto  annexed. 

And  whereas,  the  United  States  district  attorney  for  the 

district  of has  made  application  to  me  under  the 

provisions  of  Section  1014  of  the  Revised  Statutes  of  the 
United  States  for  a  warrant  for  the  removal  of  said  prisoner 

to  the  said district  of ,  and  an  examination  of  the 

matter  having  been  made  by  me,  now,  therefore,  you  are 
hereby  commanded  to  remove  said  prisoner,  now  in  your 

custody,  forthwith  to  the  said district  of ,  and  there 

deliver  him  to  the  United  States  marshal  for  the dis- 
trict of ,  or  some  other  proper  oflEicer  authorized  to  re- 
ceive the  said  prisoner,  in  order  that  he  may  be  dealt  with 
according  to  law. 

Given  under  my  hand  and  seal  of  the  district  court  of  the 

United  States  for  the district  of ,  at  the  city  of 

,  this  day day  of ,  189 — .  G.  W., 


District  Judge. 


Attest : 
B.  R., 

Clerk. 


4i6 


CRIMINAL   PROCEEDINGS. 


No.  467. 

Fee  Bill  (i). 

The  United  States  of  America, 
To ,  U.  S.  Commissioner  for  the  - 


•District  of- 


-,Dr. 


The  United  States 
vs. 


Complaint  made  by .  Complaint  ap- 
proved by .    Offense  charged,  viol. 

Sec. ,  R.  S.  U.  S.     Offense  com- 
mitted at ,  on  the day  of , 

1 89-.  Residence  of  accused,  P.  O. . 

Disposition  of  case, . 


DATE. 

> 

II 

Drawing  complaint,  —  folios,  @  — c.  per  folio, 
— ;  oath,  IOC. ;  jurat,  15c.;  filing,  loc.  .    . 

Issuing  warrant  for  arrest,  $1 ;  entering  return, 
I  t;c. :  filiner,  loc 

•    • 

• 

• 

Issuing  subpoena  for  —  U.  S.  witnesses,  25c. ; 
ent.  ret.,  15c.;  filing,  loc 

Issuing  —  temporary  mittimus  (warrant  com- 
mitting   defendant   for  examination),  $1 
each,  — ;  ent. —  return  ,  15c.  each,  — ;  fil- 
ing, IOC.  each 

Making  —  copy  for  jailer,  —  folios  @  — c.  per 
folio,  — ;  certificate,  15c. 

Drawing  —  temp,  recog.  of  defendant  to  ap- 
pear for  examination,  3  fols.,  45c. ;  filing, 
IOC 

Taking  acknowl.  to  temporary  recog.  by  de- 
fendant and  —  sureties,  2  sc 

Oaths  to  —  sureties  in  justification,  loc.  each  . 
Swearing  —  U.  S.  witnesses  on  examination, 
IOC  each 

Hearing  and  deciding  on  criminal  charge,  — 
day  of — ,  189- 

Hearing  and  deciding  on  criminal  charge,  — 
day  of  — ,  1 89- 

Drawing  final  recognizance   of  defendant  to 
covtrt,  —  ■;  fols.,  dqc 

Taking  acknowl.  of  final  recog.  by  defendant 
and  —  sureties,  25c 

Oaths  to  —  sureties  in  justification,  loc.  each. 

FEE    BILL. 


417 


Drawing  recognizance  of  —  witnesses  to  court, 

3  folios,  45c 

Taking  acknowl.  to  recog.  by  —  witnesses  and 

—  sureties,  25c 

Issuing  final  mittimus  (warrant  committing 

deft,  for  trial),  $1 ;  ent.  return,  15c.;  filing, 

IOC 

Making  copy  for  jailer,  —  folios,  @  — c.  per 

folio, — ;  certificate,  15c 

Oaths  to  —  U.  S.  witnesses  as  to  attendance 

and  travel,  loc.  each 

Order  (in  duplicate)  for  marshal  to  pay  U.  S 

witnesses,  —  fols.,  at  15c.  per  fol 

Discharging, ,  a  poor  convict,  under 

Sec.  1943  R.  S 

Copy  of  process  forwarded  to  court,  —  folios, 

@  IOC.  per  folio 

Transcript  of  proceedings  sent  up  on  order  of 

court,  —  folios,  @  15c.  per  folio 

Writing  testimony  of  witnesses  (depositions 

taken  on  examination),  —  fols.,  20c.  per 

fol 


Total,     

Amount  carried  forward. 


WITNESSES  IN  ABOVE  CASE. 

SURETIES  OF  DEFENDANTS  IN  ABOVE 
RECOGNIZANCES. 

Name. 

Residence. 

Name. 

Residence. 

(i)  The  Treasury  Department,  per  First  Comptroller,  requires 
United  States  Commissioners  to  use  paper  of  half  cap  size,  8>^  x  14 
inches,  and  only  one  side  of  page  to  be  used.  As  to  fees,  see  R.  S., 
Sees.  847, 828,  1014,  1015 ;  and  U.  S.  vs.  Jones,  134  U.  S.,  483 ;  U.  S.  vs. 
Ewing,  140  U.S.,  142;  U.  S.  vs.  Barber,  Id.  164;  U.  S.  vs.  do.,  lb.  177; 
U.  S.  vs.  Van  Duzee,  lb.  169;   U.  S.  vs.  McDermott,  lb.  151. 


4l8  CRIMINAL    PROCEEDINGS. 


INDICTMENTS. 

No.  468. 
W^rit  of  Venire  for  Grand  Jury. 
For  form  of  Writ  of  Venire,  see  No.  56. 


No.  469. 
Oath  or  Affirmation  of  Foreman  of  Grand  Jury. 

You  do  solemnly  swear  [or  affirm]  that,  saving  yourself 
and  your  fellow-jurors,  you,  as  foreman  of  this  grand  inquest, 
shall  diligently  inquire,  and  true  presentment  make,  of  all 
such  matters  and  things  as  shall  be  given  you  in  charge,  or 
otherwise  come  to  your  knowledge,  touching  the  present 
service ;  the  counsel  of  the  United  States,  your  own  and  your 
fellows,  you  shall  keep  secret,  unless  called  on  in  a  court  of 
justice  to  make  disclosures ;  that  you  shall  present  no  person 
through  malice,  haired,  or  ill-will,  nor  shall  you  leave  any 
person  unpresented  through  fear,  favor,  or  affection,  or  for 
any  reward  or  hope  thereof,  but  in  all  your  presentments  you 
shall  present  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  according  to  the  best  of  your  skill  and  understanding, 
and  this  you  do  as  you  shall  answer  to  God.  \If  the  foreman 
should  affirm^  then  add  here^  "and  this  you  do  under  the  pains 
and  penalties  of  perjury."] 

No.  470. 

Oath  or  Affirmation  of  Grand  Jurors. 

You,  and  each  of  you,  do  solemnly  swear  \or  affirm]  the 
same  oath  which  H.  B.,  your  foreman,  has  now  taken  before 
you  on  his  part;  you  and  each  of  you  shall  well  and  truly 
observe,  and  keep  on  your  respective  parts,  and  this  you  do 


INDICTMENTS.  419 

as  you  shall  answer  to  God.  \If  an  affirmation  is  taken  in 
place  of  oath^  then  add  here^  "  and  this  you  do  under  the  pains 
and  penalties  of  perjury."] 

No.  471. 

General  Form  of  Indictment. 

The  United  States  of  America,  , ,. 

^.     .       .  No. . 

District  of ,  ss. 

In  the  Circuit  Court  of  the  United  States  within  and  for  the 

District  of ,  in  the Judicial  Circuit,  of  the 

Term  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  ninety . 

The  grand  jurors  of  the  United  States  of  America,  duly 
empaneled,  sworn,  and  charged  to  inquire  in  and  for  the  said 
district,  upon  their  oaths  and  affirmations,  present  that  L.  H. 

on,  to  wit,  the day  of ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  ,  in  the  county  of , 

in  the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  did,  then  and  there,  un- 
lawfully, knowingly,  and  with  force  and  arms  \here  state  the 
offense  according  to  the  case^  and  conclude^  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  United  States  of  America. 
[Additional  charges  may  be  added^  if  necessary^  as  follows  .•] 
Second  Count.  And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L. 

H.,  on,  to  wit,  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of , 

in  ,the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court  [here  set  forth  all  the 
offenses.,  and  concltide\  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  and  dig- 
nity of  the  United  States  of  America.  J,  H., 
A  true  bill.                                     United  States  Attorney. 
H.  B., 
Foreman. 


420  CRIMINAL   PROCEEDINGS. 


INDICTMENTS  IN  SPECIAL  CASES. 

No.  472. 

Misapplication  of  Funds  by  National  Bank  Officer  (i). 

The  United  States  of  America, 

District  of ,  ss. 

In  the  Circuit  Court  of  the  United  States,  within  and  for  the 
District  of ,  in  the Judicial  Circuit,  of  the 


Term  of ,  in  the  year  of  our  Lord . 

And  the  grand   jurors    aforesaid,    upon    their  oaths  and 
affirmations  aforesaid,  do  present  that  L.  H.,  on,  to  wit,  the 

day  of ,  in  the  year  of  our  Lord ,  in  the  county 

of ,  in  the  state  of ,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  he,  the  said 
L.  H.,  being  then  and  there  president  of  a  certain  national 
banking  association,  then  and  there  known  as  the Na- 
tional Bank  of ,  in  the  state  of ,  which  said  associa- 
tion had  been  heretofore  created  and  organized  under  and  by 
virtue  of  the  laws  of  the  United  States,  and  which  said  asso- 
ciation was  then  and  there  acting  and  carrying  on  the  bank- 
ing business  at ,  in  the  said  district,  did  then  and  there 

unlawfully,  and  willfully,  and  with  intent  to  injure  and  defraud 
the  said  association,  for  the  use,  benefit,  and  advantage  of 
himself,  misapply  certain  of  the  moneys,  funds,  and  credits  of 
the  said  association,  to  wit:  the  sum  of  twenty  thousand 
dollars  ($20,ocx).oo),  in  the  manner  and  by  the  means  follow- 
ing, that  is  to  say :  That  he,  the  said  L.  H.,  as  such  presi- 
dent as  aforesaid,  did  then  and  there  cause  to  be  credited 
upon  the  books  of  said  association  to  his,  the  said  L.  H.'s, 
individual  account,- the  said  sum  of  twenty  thousand  dollars 
($20,000.00),  he,  the  said  L.  H.,  not  being  entitled  to  be  then 
and  there  credited  upon  the  said  books  with  the  said  sum  of 
money,  or  any  part  thereof,  as  he,  the  said  L.  H.,  then  and 


INDICTMENTS   IN   SPECIAL   CASES.  42 1 

there  well  knew,  and  did  thereby  falsely  and  fraudulently 
represent  to  the  directors,  officers,  clerks,  and  tellers  of  the 
said  banking  association  that  he,  the  said  L.  H.,  was  entitled 
to  draw  and  have  paid  out  of  the  moneys  and  funds  of  the 
said  association  the  sum  of  twenty  thousand  dollars  ($20,- 
000.00),  and  did  thereby  place  at  the  disposal  and  subject  to 
the  order  of  the  said  L.  H.  certain  of  the  moneys  and  funds 
of  the  said  association,  to  wit :  the  said  sum  of  twenty  thou- 
sand dollars  ($20,000.00),  he,  the  said  L.  H.,  then  and  there 
unlawfully,  wickedly,  and  fraudulently  devising  and  intend- 
ing that  he  should  be  enabled  to  draw  and  have  paid  out  of 
the  moneys  and  funds  of  the  said  association,  and  should 
appropriate  and  convert  to  his  own  use,  without  right  and 
without  being  justly  entitled  thereto,  the  said  sum  of  twenty 
thousand  dollars  ($20,000.00),  and  thereupon  the  checks  of 
the  said  L.  H.,  drawn  upon  the  said  association  for  the  said 
sum  of  twenty  thousand  dollars  ($20,000.00)  being  then  and 
there  presented  to  the  said  association  for  payment,  were,  by 
reason  of  the  credit  so  made  upon  the  books  of  the  said  asso- 
ciation, as  aforesaid,  and  by  the  authority  of  the  said  L.  H., 
as  expressed  in  the  said  credit,  and  in  pursuance  of  the  intent 
aforesaid  of  the  said  L.  H.,  then  and  there  drawn  and  paid 
out  of  the  moneys  and  funds  of  the  said  association,  although, 
as  he,  the  said  L.  H.,  then  and  there  well  knew  the  said  sum 
of  twenty  thousand  dollars  ($20,000.00),  so  drawn  out,  paid, 
and  appropriated,  had  not  been  deposited  with  the  said  asso- 
ciation by  him,  or  by  any  other  person  for  his  use,  and  was 
not  then  and  there  due  and  owing  by  and  from  the  said  asso- 
ciation to  the  said  L.  H.,  and  the  repayment  thereof  to  the 
said  association  was  not  then  and  there  in  any  way  secured, 
and  the  said  L.  H.  had  no  manner  of  right  to  the  same,  he, 
the  said  L.  H.,  then,  "there,  and  thereby  intending  to  defraud 
and  injure  the  said  association,  contrary'  to  the  form  of  statute 
in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  United  States  of  America.  J.  H., 

A  true  bill.  Attorney. 

H.  B.,  Foreman. 


432  CRIMINAL   PROCEEDINGS. 

No.  473. 

National  Bank  Officers  Embezzling,    etc.,    Funds    (i). 

The  United  States  of  America, 

District  of ,  ss. 

In  the  Circuit  Court  of  the  United  States,  within  and  for  the 

District  of ,  in  the Judicial  Circuit,  of  the 

Term  of ,  in  the  year  of  our   Lord  one  thousand 

eight  hundred  and . 

First  Count.  The  grand  jurors  of  the  United  States  of 
America,  duly  empaneled,  sworn,  and  charged  to  inquire 
within  and  for  the  said  district,  upon  their  oaths  and  affirma- 
tions, present  that  L.  H.  on,  to  wit,  the ,  day  of ,  and 

at  various  times  between  that  date  and  the day  of , 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

,  in  the  county  of ,  in  the  State  of ,  in  the 

circuit  and  district  aforesaid,  and  within  the  jurisdiction  of 
this  court,  the  said  L.  H.  being  then  and  there  a  director 
and  the  vice-president  of  a  certain  national  banking  associa- 
tion, then  and  there  known   and   designated   as   the 

National   Bank   of ,  in   the  state   of ,  which   said 

association  had  been  heretofore  created  and  organized  under 
the  laws  of  the  United  States  of  America,  and  which  said 
association  was  then  and  there  carrying  on  a  banking  busi- 
ness in  the  city  of ,  state  of ,  did  then  and  there 

unlawfully  and  willfully  misapply  the  moneys,  funds,  and 
credits  of  the  said  association  without  the  knowledge  and 
consent  thereof,  and  with  intent  to  convert  the  same  to  his 
own  use,  to  wit :  three  million  dollars  ($3,cxdo,ooo)  of  the 
moneys,  funds,  and  credits  of  the  said  association,  in  this, 
to  wit :  That  the  said  L.  H.,  as  aforesaid,  did  pay,  and  cause  to 
be  paid  to  J.  K.  &  Co.,  L  G.  &  Co.,  W.  E.  &  Co.,  J.  W.  H., 
and  other  persons  to  the  grand  jurors  unknown,  the  said 
sum  of  three  million  dollars  ($3,000,000)  of  the  funds,  mon- 
eys, and  credits  of  the  said  association,  to  be  used  in  certain 
hazardous   and  gambling  transactions  in  the  city  of  Chicago^ 


INDICTMENTS   IN   SPECIAL   CASES.  423 

Illinois,  to  wit :  To  buy  for  the  said  L.  H.  large  quantities, 
to  wit :  thirty  million  bushels  of  wheat  in  the  city  of  Chicago, 
Illinois ;  he,  the  said  L.  H.,  not  intending  to  pay  the  full 

price  for  said  wheat,  nor  to  receive  the  same  in , , 

but  to  use  the  said  three  million  dollars  ($3,000,000)  in  part 
payment  of  the  price,  in  expectation  of  a  contingent  ad- 
vance in  the  market  value  of  said  wheat  for  the  benefit,  use, 
and  profit  and  gain  of  the  said  L.  H.,  and  certain  other 
persons  other  than  the  said  association  to  the  grand  jurors 
unknown,  and  with  intent  to  injure  and  defraud  the  said 
association  ;  the  willful  misapplication  of  the  moneys,  funds, 
and  credits  of  the  association  by  him,  for  the  use  and  ben- 
efit and  with  the  intent  aforesaid  by  him,  the  said  L.  H. 
as  aforesaid,  being  then  and  there  contrary  to  the  form  of 
statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  United  States  of  America. 

Second  Count.  And  the  grand  jurors  of  the  United 
States  of  America,  duly  empaneled,  sworn,  and  charged  to 
inquire  within  and  for  the  said  district,  upon  their  oaths  and 

affirmations  present  that  L.  H.,  on,  to  wit,  the day  of 

,   and   at   various   times   between   that  date    and    the 

day  of ,  in  the  year  of   our    Lord  one  thousand 

eight  hundred  and ,  in  the  county  of ,  state  of , 

in  the  circuit  of  the  district  aforesaid,  and  within  the  juris- 
diction of  this  court,  the  said  L.  H.  being  then  and  there  a 
director  and  agent  of  a  certain  national  banking  association 

then  and  there  known  and  designated  as  the National 

Bank  of  — ,  in  the  state  of ,  and  which  said  associa- 
tion had  been  therefore  created  and  organized  under  the 
laws  of  the  United  States  of  America,  and  which  said  asso- 
ciation was  then  and  there  acting  and  carrying  on  a  banking 

business  in  the  city  of ,  in  said  district  aforesaid,  and 

the  said  L.  H.,  director  and  agent  as  aforesaid  did,  by  virtue 
of  such  his  employment,  and  whilst  so  employed  as  afore- 
said, receive  and  take  into  his  possession  large  sums  of 
money  and  funds  to  and  for  the  said National  Bank,  to 


424  CRIMINAL    PROCEEDINGS. 

wit :  the  sum  of  three  million  dollars,  for  and  in  the  name 

and  on  the  account  of  the  said  association,  the National 

Bank,  and  the  said  L.  H.,  at  the  times  aforesaid  and  the 
place  aforesaid,  did  unlawfully  embezzle  and  convert  to  his 
own  use  certain  sums  of  said  funds,  moneys,  and  credits  of 

the  said National  Bank  of ,  to  wit:  the  sum  of  two 

million  dollars  thereof,  a  more  particular  description  of  the 
funds,  moneys,  and  credits  so  embezzled  as  aforesaid  being  to 
the  jurors  aforesaid  unknown,  with   intent  then,  there,  and 

thereby  to  injure  and  defraud  the  said National  Bank, 

contrary  to  the  form  and  provisions  of  Section  5209  of  the 
United  States  Revised  Statutes  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  United 
States  of  America. 

Third  Count.     And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L. 

H.  on,  to  wit,  the day  of ,  in  the  year  of  our  Lord  one 

thousand   eight  hundred  and  ,  in  the  county  of , 

in  the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  being  then  and  there  a 

director  and  vice-president  of  the National  Bank  of—; — , 

in  the  state  of ,  and  which National  Bank  was  then 

and  there  a  national  banking  association,  duly  organized 
under  the  laws  of  the  United  States,  and  then  and  there  car- 
rying on  the  business  of  banking,  did,  then  and  there,  with 
intent  to  injure  said  association,  and  without  the  knowledge 
and  consent  thereof,  unlawfully  and  willfully  misapply  of  the 
moneys,  funds,  and  credits  of  the  said  association  the  sum  of 
two  hundred  thousand  dollars  ($200,000.00),  in  this,  to  wit,  that 
the  said  L.  H.,  as  aforesaid,  caused  himself  to  be  credited  on 
the  books  of  said  banking  association  to  the  credit  of  said  L. 
H.,  and  subject  to  his  order  and  draft  and  withdrawal,  the 
said  sum  of  two  hundred  thousand  dollars,  with  intent  to  con- 
vert the  same  to  his  own  use,  and  the  grand  jurors,  as  afore- 
said, further  say  that  the  said  L.  H.,  as  aforesaid,  did  then  and 
there  make  a  certain  writing,  to  wit,  charge  ticket,  in  the 
words  and  figures  following,  to  wit : 


INDICTMENTS    IN    SPECIAL   CASES.  425 

The National  Bank, ,  Feb. ,  1887. 

Credit  L.  H $200,000.00. 

Amount  deposited  to  credit 

National  Bank  in 

L.  H. 
Charge  First  National  Bank,  New  York,  $200,000.00. 

And  caused  the  same  to  be  entered  on  the  books  of  said 

National  Bank  to  the  credit  and  subject  to  the  order  and 

disposal  of  the  said  L.  H.;  which  said  writing,  to  wit,  charge 
ticket,  did  in  substance  and  effect  declare  that  L.  H.  had  de- 
posited to  credit  of  the  said National  Bank  in  the  First 

National  Bank  of  New  York  City,  the  sum  of  two  hundred 
thousand  dollars,  whereas,  in  truth  and  fact,  as  he,  the  said 
L.  H.,  then  and  there  well  knew,  that  the  said  sum  of  two 
hundred  thousand  dollars  had  not  been  by  him  deposited  in 
said  First  National  Bank  of  New  York,  to  the  credit  of  said 

National  Bank  aforesaid,  and  the  said  L.  H.,  fraudulently 

intending  and  devising  to  convert  the  same  to  his  own  use;  and 
the  grand  jurors  further  say  that  the  said  L.  H.  did  then 
and  there  willfully  misapply  the  said  sum  of  two  hundred 
thousand  dollars,  moneys,  funds,  and  credits,  and  convert  the 
same  to  his  own  use,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  and  dig- 
nity of  the  United  States  of  America. 

Fourth  Count.    And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L. 

H.,  on,  to  wit,  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of , 

in  the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  the  said  L.  H.  being 
then  and  there  a  director  and  vice-president  of  a  certain 
national  banking  association,  then  and  there  known  and  des- 
ignated as  the  National  Bank  of ,  in  the  state  of 

,  which  said  association  has  been  heretofore  created  and 

organized  under  the  laws  of  the  United  States  of  America, 


426 


CRIMINAL   PROCEEDINGS. 


and  then  and  there  carrying  on  a  banking  business  in  the 
city  of ,  in  the  state  of ,  did  then  and  there,  know- 
ingly and  unlawfully  issue  and  put  forth,  without  the  author- 
ity of  the  directors  of  said  association,  and  with  intent  to  con- 
vert the  same  to  his  own"  use,  to  the  First  National  Bank  of 
New  York  City,  state  of  New  York,  a  certificate  of  deposit  in 
the  following  words  and  figures,  to  wit : 

The National  Bank, 

,  April , . 


o 
(X 
<u 

Q 
(*^ 
o 

n) 
o 

<v 
U 


CO    OJ 

(V 

2  ^  V 

!-!     ♦-     Q 

^^  ^ 

Ho  & 
o  'd 


a» 


No.  500.  .  — 

First  National  Bank,  N.  Y.,  has  deposited  in  this 
Bank 

Two  Hundred  Thousand  Dollars, 
payable  to  the  order  ol  E.  S.,  Cas.  at  First  National 
Bank,  N.  Y.,  on  return  of  this  Certificate,  in  current 

funds  with   five  per  cent,  interest  on  July  , 

,  fixed.  ly.  H., 


$200,000.00. 
Due  July  - 


V.  P. 


And  did  cause  the  same  to  be  forwarded  to  the  said  First 
National  Bank  of  New  York,  he,  the  said  L.  H.,  as  aforesaid, 
then   and   there  well  knowing   that  the  said  First  National 

Bank  had  not  deposited  in  the National  Bank  of y. 

,  the  sum  of  two  hundred  thousand  dollars  ($200,000.00) 


as  set  forth  in  said  certificate  of  deposit,  and  that  no  consid- 
eration had  been  received  by  the  said  association  for  the 
said  certificate  of  deposit. 

And  the  grand  jurors  further  say  that  he,  the  said  L.  H.,  as 
aforesaid,  did  then  and  there  procure  a  loan  of  two  hundred 
thousand  dollars  from  the  First  National  Bank  on  the  said  cer- 
tificate of  deposit  for  the  use,  benefit,  and  gain  of  the  said  L. 
H.,  the  issue  of  the  said  certificate  of  deposit,  as  aforesaid, 
without  the  authority  of  the  directors  of  the  said  association, 
and  without  the  knowledge  and  consent  thereof,  with  intent 
to  convert  the  proceeds  thereof  to  his  own  use,  and  to  injure 
said  "association,  being  then  and  there  contrary  to  the  fonn 


INDICTMENTS   IN   SPECIAL   CASES.  42/ 

of  the  statute  in  such  case  made  and  provided  and  against 
the  peace  and  dignity  of  the  United  States  of  America. 

Fifth  Count.     And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L. 

H.,  on,  to  wit,  the day  of  April,  in  the  year  of  our  Lord 

one   thousand   eight  hundred   and ,  in   the   county   of 

,  in  the  state  of ,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  the  said  L.  H. 

being  then  and  there  director  and  vice-president  of  the 

National  Bank  of ,  then  and  there  a  national  banking  as- 
sociation heretofore  organized  under  the  laws  of  the  United 
States,  and  then  and  there  carrying  on  a  banking  business  in 

the  city  of ,  state  of ,  and  of  the  district  aforesaid, 

and  that  he,  the  said  L.  H.,  director  and  vice-president  as 
aforesaid,  did  then  and  there  unlawfully  and  willfully,  and 

with  intent  to  injure  the  said  association,  the National 

Bank   of ,  and   without   the    knowledge   and   consent 

thereof,  and  with  intent  to  convert  the  same  to  his  own  use, 
misapply  the  funds,  moneys,  and  credits  of  said  association 
in  this,  to  wit :  that  the  said  L.  H.,  as  aforesaid,  did  then  and 
there  procure  from  the  First  National  Bank  of  New  York  the 
loan  of  a  large  sum  of  money,  two  hundred  thousand  dollars 

($200,000.00),  upon  a  certificate  of  deposit  of  the  said 

National  Bank  for  the  sum  of  two  hundred  thousand  dollars, 
and  certain  collateral  securities,  to  wit:  bills  receivable, 
choses  in  action,  drafts,  and  promissory  notes,  discounted  by 

the  said  National  Bank,  unmatured  and  not  then  due, 

and  taken  by  the  said  National  Bank  in  the  regular 

course  of  its  business,  and  then  and  there  the  property,  as- 
sets, funds,  and  credits  of  the  said  association,  of  the  total 
face  value  of  one  hundred  and  thirteen  thousand  dollars 
($113,000.00),  and  then  and  there  of  the  total  money  value 
of  one  hundred  and  thirteen  thousand  dollars ;  the  said  bills 
receivable,  drafts,  promissory  notes,  choses  in  action,  and  cer- 
tificates of  deposit  being  too  voluminous,  lengthy,  and  numer- 
ous to  be  set  forth  in  this  indictment; 


428  CRIMINAL   PROCEEDINGS. 

And  the  grand  jurors  aforesaid  further  say  that  the  said 
L.  H.,  as  aforesaid,  did  then  and  there  convert  the  said  two 
hundred  thousand  dollars,  so  obtained  as  aforesaid,  to  his  own 
use,  in  the  purchase  by  him,  the  said  L.  H.,  for  the  use,  ben- 
efit, and  gain  of  the  said  L.  H.,  a  large  quantity  of  wheat,  to 
wit,  ten  million  bushels  of  wheat ;  a  more  particular  descrip- 
tion thereof,  and  the  persons  through  whom  said  purchases 
were  made,  being  to  the  jurors  aforesaid  unknown. 

And  the  grand  jurors  aforesaid,  upon  their  oaths  and 
affirmations  aforesaid,  do  say  that  the  said  L.  H.,  director 
and  vice-president  as  aforesaid,  in  the  manner  and  form,  and 
by  the  means  and  for  the  use  and  benefit,  and  with  the 
intent,  and  without  the  knowledge  and  consent  aforesaid, 
did  then  and  there  willfully  misapply  of  the  moneys,  funds, 
and  credits  of  the  said  association  the  said  sum  of  two  hun- 
dred thousand  dollars  aforesaid,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  United  States  of  America. 

Sixth  Count.  And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L.  H., 

on,  to  wit,  the day  of  March,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  eighty-seven,  in  the  county 
of ,  in  the  State  of ,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  the  said  L.  H. 

being  then  and  there  director  and  vice-president  of  the 

National  Bank  of ,  then  and  there   a   national  banking 

association,  heretofore  organized  under  the  banking  laws 
of  the  United  States,  and  then  and  there  carrying  on  a  bank- 
ing business  in  the  city  of ,  state  of ,  and   of  the 

district  aforesaid,  and  that  he,  the  said  L.  H.,  director  and 
vice-president  as  aforesaid,  did  then  and  there  unlawfully  and 
willfully,  and  with  intent  to  injure  the  said  association,  the 

National  Bank  of ,  and  without  the  knowledge  and 

consent  thereof,  misapply  the  funds,  moneys,  and  credits  of 
said  association,  and  did  pay,  and  caused  to  be  paid,  to  O.  & 
C,  of  Chicago,  state  of  Illinois,  out  of  the   moneys,  funds, 


INDICTMENTS   IN   SPECIAL   CASES.  429 

and  credits  of  said  association,  the  sum  of  fifty  thousand 
dollars,  lawful  money  of  the  United  States,  in  the  purchase, 
by  him,  the  said  L.  H,,  from  the  said  O.  &  C,  and  other  per- 
sons to  said  jurors  unknown,  for  the  use,  benefit,  and  advan- 
tage of  the  said  L.  H.,  of  a  large  quantity  of  wheat,  to  wit : 
One  million  bushels  of  wheat,  a  more  particular  description 
of  said  purchase,  and  the  particulars  thereof,  and  of  the 
moneys,  funds,  and  credits  so  paid,  and  of  the  persons  and 
parties  composing  said  copartnership  of  O.  &  C,  as  afore- 
said, being  to  the  said  jurors  unknown. 

And  the  grand  jurors  aforesaid,  upon  their  oaths  and 
affirmations  aforesaid,  do  say  that  he,  the  said  L.  H.,  director 
and  vice-president,  as  aforesaid,  in  the  manner  and  form^ 
and  by  the  means,  and  for  the  use  and  benefit,  and  with  the 
intent,  and  without  the  knowledge  and  consent  aforesaid,  did 
then  and  there  willfully  misapply  of  the  moneys,  funds,  and 
credits  of  the  said  association  the  said  sum  of  fifty  thousand 
dollars  aforesaid,  and  convert  the  same  to  his  own  use,  con- 
trary to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  United 
States  of  America. 

Seventh  Count.  And  the  grand  jurors  aforesaid,  upon 
their  oaths  and  afi&rmations  aforesaid,  do  further  present  that 

L.  H,,  on,  to  wit,  the day  of  April,  in  the  year  of  our 

Lord  one   thousand  eight  hundred  and ,  in  the  county 

of ,  in  the  state  of ,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  the  said  L. 
H.  being  then  and  there  a  director  and  vice-president  of  the 

National  Bank  of ,  in  the  state  of ,  and  which 

said National  Bank  was  then  and  there  a  national  bank- 
ing association,  duly  organized  under  the  laws  of  the  United 
States,  and  then  and  there  carrying  on  the  business  of  bank- 
ing, did  then  and  there  unlawfully  and  willfully,  and  with 

intent  to  injure  the  said National   Bank,  and  without 

the  knowledge  and  consent  thereof,  misapply  of  the  moneys, 
funds,  and  credits  of  the  said  association  the  sum  of  sixty- 


430  CRIMINAL   PROCEEDINGS. 

seven  thousand  and  thirty-seven  dollars  and  fifty  cents 
($67,037.50),  lawful  money  of  the  United  States,  in  this, 
to  wit:  That  the  said  L.  H.,  as  aforesaid,  did  pay,  and  cause 
to  be  paid,  out  of  the  moneys,  funds,  and  credits  of  the  said 

National  Bank,  for  the  use,  profit,  and  gain  of  the  said 

L.  H.,  a  draft  in  the  following  words  and  figures,  to  wit : 

$67,037.50.-  American  Exchange 

Nat'l  Bank.  I.  G.  &  Co. 

No.  97.        Chicago. 

Chicago,  April  29,  1887. 
Pay  to  order  of  A.  L.  D.,  Cashier, 
Sixty  Thousand  and  Thirty-seven  50-100  Dollars. 

The Nat'l  Bank, 

, .  Value  received,  and  charge  the 

same  to  account  of 

I.  G.  &  Co. 

On  the  back  of  which  said  draft  are  indorsed  the  following 
words : 

"  Pay Nat'l  Bank, , ,  or  order, 

for   collection,  account  of  American  Exchange 
Nat'l  Bank  of  Chicago. 

A.  L.  D.,  Cashier." 

He,  the  said  L.  H.,  well  knowing  that  the  said  I.  G.  &  Co. 

had  no  moneys,  funds,  or  credits  in  said National  Bank 

to  pay  said  draft,  and  that  the  said  association  had  received 
no  consideration  for  the  same,  and  that  the  same  was  with- 
out its  knowledge  and  consent ;  and  he,  the  said  L.  H.,  then 
and  there  fraudulently  intending  and  devising  that  the  said 
I.  G.  &  Co.  should  obtain  possession  of  the  said  sixty-seven 
thousand  and  thirty-seven  dollars  and  fifty  cents  ($67,037.50) 
for  the  use,  benefit,  and  gain  of  the  said  L.  H.;  and  the  grand 
jurors  further  say  that  the  said  sum  of  sixty-seven  thousand 
and  thirty-seven  dollars  and  fifty  cents  ($67,037.50),  moneys, 
funds,  and  credits  of  the  said National  Bank,  a  more  ac- 
curate and  particular  description  of  said  moneys,  funds,  and 


INDICTMENTS   IN   SPECIAL   CASES.  431 

credits  being  to  the  jurors  aforesaid  unknown,  was  then  and 
there  unlawfully  misapplied  and  converted  to  the  use  of  the 
said  L.  H.,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the 
United  States  of  America. 

Eighth  count.     And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L. 

H.,  on,  to  wit,  the day  of  June,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of , 

in  the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  the  said  L.  H.  being 
then  and  there  a  director  and  the  vice-president  of  a  national 
banking  association  organized  under  the  banking  laws  of  the 

United  States,  to  wit,  the National  Bank  of ,  in  the 

state  of ,  and  of  the  district  aforesaid,  and  which  said 

National  Bank  as  aforesaid  was  then  and  there  carry- 
ing on  the  business  of  banking  as  aforesaid,  did,  without  the 
knowledge  and  consent  of  said  bank,  knowingly  make  and 
cause  to  be  made  by  one  C.  T.  A.,  then  and  there  a  clerk  in 
said  bank,  in  a  book  then  and  there  belonging  to  and  in  use 
by  the  said  association  in  the  transaction  of  its  banking  busi- 
ness, and  designated  and  known  as  '*  Individual  No.  2,  A.  to 
J.,"  a  certain  entry  to  the  credit  of  I.  G.  &  Co.,  of  Chicago, 
in  the  state  of  Illinois,  in  the  words  and  figures  following, 
to  wit : 

I.  G.  &  Co. 
Cr.  Bal. 

18 .     June ,  $285,000.  $285,000. 

And  which  said  entry,  so  as  aforesaid  made  in  said  book,  did, 
in  substance  and  effect,  declare  that  the  said  association  had 
in  its  possession  the  sum  of  two  hundred  and  eighty-five 
thousand  dollars  ($285,000)  belonging  to  said  I.  G.  &  Co., 
subject  to  the  order  of  said  I.  G.  &  Co.;  and  the  grand  jurors 
aforesaid  further  say  that  the  said  entry  so  made  as  aforesaid 
was  false  in  this,  to  wit,  that  the  said  association  did  not 


432  CRIMINAL    PROCEEDINGS. 

have  in  its  possession  the  sum  of  two  hundred  and  eighty- 
five  thousand  dollars  ($285,000),  nor  any  part  thereof,  as  he, 
the  said  L.  H,  as  aforesaid,  then  and  there  well  knew,  and 
that  the  said  entry  so  made  was  false  in  this,  to  wit,  that  the 
said  association  had  not  received  from  any  person  or  persons 
the  said  sum  of  two  hundred  and  eighty-five  thousand  dol- 
lars ($285,000)  for,  to,  and  on  account  of  said  I.  G.  &  Co., 
nor  had  the  said  association  loaned  to  the  said  I.  G.  &  Co. 
the  said  sum  of  two  hundred  and  eighty-five  thousand  dollars 
($285,000),  as  he,  the  said  L.  H.,  then  and  there  well  knew ; 
he,  the  said  L.  H.,  intending  then,  there,  and  thereby  to  de- 
fraud the  said  association,  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  United  States  of  America. 

Ninth  Count.     And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  afl&rmations  aforesaid,  do  further  present  that  L. 

H.,  on,  to  wit,  the day  of  June,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of , 

in  the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  the  said  L.  H.  being 

then  and  there  a   director   and  agent  of  the National 

Bank  of ,  then  and  there  a  national  banking  association 

heretofore  organized  under  the  banking  laws  of  the  United 
States,  and  then  and  there  carrying  on  a  banking  business 
in  the  city  of ,  state  of ,  and  of  the  district  afore- 
said ;  and  he,  the  said  L.  H.,  as  aforesaid,  did  then  and  there 
unlawfully  and  fraudulently  abstract  and  convert  to  his  own  use 

property,  credits,  and  funds  of  the  said National  Bank 

of  the  value  of  one  million  dollars,  which  had  come  into  his 
possession,  and  which  were  entrusted  to  him,  the  said  L.  H., 
as  such  director  and  vice-president  of  the  said  association ; 
and  the  grand  jurors  aforesaid  further  say  that  the  said  L. 
H.,  as  aforesaid,  did  then  and  there  abstract,  and  surrepti- 
tiously obtain,  without  the  knowledge  and  authority  of  the 
directors  of  the  said  association,  and  without  the  knowledge 
and  consent  of  said  association,  and  with  intent  to  convert 


INDICTMENTS   IN   SPECIAL   CASES.  433 

the  same  to  his  own  use,  a  large  number  of  bills  receivable, 
drafts,  choses  in  action,  and  promissory  notes  unmatured  and 
not  then  due  and  payable,  and  other  collateral  securities 
then  and  there  the  assets,  funds,  credits,  and  property  of  said 
association,  and  heretofore  discounted  and  taken  in  the  reg- 
ular course  of  its  business  by  the  said National  Bank,  as 

aforesaid,  of  the  total  face  value  of  one  million  dollars,  and 
of  the  total  money  value  of  one  million  dollars,  the  said  bills 
receivable,  choses  in  action,  drafts,  promissory  notes,  and  a 
more  accurate  description  of  the  same  being  too  numerous, 
voluminous,  and  lengthy  to  be  set  out  in  this  indictment 
(and  a  more  particular  description  of  the  same  being  to  the 
said  jurors  aforesaid  unknown),  the  unlawful  and  fraudulent 
abstraction  of  the  said  funds,  assets,  and  property  of  the  said 

National  Bank  by  him,  the  said  L.  H.,  as  aforesaid,  with 

intent  to  convert  the  same  to  his  own  use,  and  to  defraud 
said  association,  being  then  and  there  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  United  States  of  America. 

J-H.,      , 
U.  S.  Attorney. 

(i)  See  R.  S.,  Sec.  5209.  Taken  from  the  record  in  U.  S.  vs.  E.  L. 
Harper,  and  sustained  in  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  Ohio.    See  U.  S.  vs.  Harper,  33  Fed.  Rep.,  471. 


No.  474. 

Using  Mails  Concerning  Scheme  to  Defraud 
(R.  S.,  Sec.  5480). 

The  United  States  of  America,  ^^  

District  of ,  ss. 

In  the  Circuit  Court  of  the  United  States  within  and  for  the 

District  of ,  in  the Judicial  Circuit,  of  the 

Term  of ,  in  the  year  of  our  Lord  18 — . 

The  grand  jurors  of  the  United  States  of  America,  duly  em- 
paneled, sworn,  and  charged  to  inquire  within,  and  for  the 


434  CRIMINAL    PROCEEDINGS. 

district  of ,  upon  their  oaths  and  affirmations  pre- 


sent that  L.  H.  (doing  business  under  the  name  and  style  of 

L.  H,  &  Co.),  on,  to  wit,  the day  of ,  i8 — ,  in  the 

county  of ,  in  the  state  of ,  in  the  circuit  and  district 

aforesaid,  and  within  the  jurisdiction  of  this  court,  did  then 
and  there  unlawfully,  knowingly,  and  fraiidulently  devise  a 
scheme  and  artifice  to  defraud  various  persons,  whose  names 
are  to  the  grand  jurors  aforesaid  unknown  ;  said  scheme  and 
artifice  to  be  effected  by  inciting  the  said  various  persons, 
whose  names  are  to  the  grand  jurors  aforesaid  unknown,  to 
open  communication  with  him,  the  said  L.  H.  (doing  business 
under  the  name  and  style  of  L.  H.  &  Co.),  by  means  of  the 
post-office  establishments  of  the  United  States,  and  which 
said  misuse  of  the  post-office  establishments  of  the  United 
States  was  then  and  there  a  part  of  said  scheme  to  defraud, 
by  falsely  pretending  in  and  through  certain  advertisements, 
letters,  and  circulars,  which  said  advertisements,  letters,  and 
circulars  are  too  lengthy,  voluminous,  and  otherwise  unfit  to 
be  set  forth  in  this  instrument,  to  be  desirous  of  employing 
persons  to  advertise  electric  belts,  and  tack  up  advertisements 
and  show-cards  of  electric  goods  in  town  and  country,  and  if 
the  said  persons  would  introduce  two  of  said  electric  belts, 
and  secure  written  testimonials  from  not  less  than  two  per- 
sons who  had  been  cured  or  benefited  by  the  belts,  that  then 
he,  the  said  L.  H.  (doing  business  under  the  name  and  style 
of  h.  H.  &  Co.),  would  enter  into  an  agreement  to  pay  the 
said  persons  so  introducing  belts  and  securing  written  testi- 
monials as  aforesaid,   a  monthly  salary  of  $ (payable 

semi-monthly),  and  all  necessary  expenses  to  advertise  said 
belts,  and  also  to  be  desirous  of  making  two  trial  belts  abso- 
lutely free  to  all  honest  applicants  for  said  employment,  and 

if  the  said  persons  would  pay  $ for  said  two  trial  belts  as  a 

guarantee,  that  then  he,  the  said  L.  H.,  would  refund  the 
same  after  they,  the  said  persons,  had  commenced  work  per- 
manently by  the  month  as  aforesaid; 

When,  in  truth  and  in  fact,  he,  the  said  L.  H.  (doing  busi- 
ness as  aforesaid),  was  not  desirous  of  employing  persons  to 


INDICTMENTS    IN   SPECIAL   CASES.  435 

advertise  electric  belts,  and  tack  up  advertisements  and  show- 
cards  of  electric  goods  in  town  and  country  upon  the  terms 
as  set  forth  in  said  advertisements,  letters,  and  circulars  as 
aforesaid,  and  never  intended  to  enter  into  an  agreement  to 
pay  the  said  persons  so  introducing  two  of  said  electric  belts, 
and  securing  written  testimonials   as  aforesaid,  a  monthly 

salary  of  $ (payable  semi-monthly),  and  all  necessary 

expenses  to  advertise  said  belts ;  and  when,  in  truth  and  in 
fact,  he,  the  said  L.  H.  (doing  business  as  aforesaid),  never 
intended  to  make  two  trial  belts  absolutely  free  to  all  honest 
applicants  for  said  employment,  and  never  intended  to  refund 
the  said  $ if  they,  the  said  persons,  applicants  as  afore- 
said, would  pay  the  same  for  said  two  trial  belts  as  a  guarantee, 
after  they,  the  said  persons,  had  commenced  work  perma- 
nently by  the  month  as  aforesaid,  and  never  intended  to  em- 
ploy said  persons,  or  any  of  them,  applicants  as  aforesaid, 
permanently  by  the  month ; 

But  was  deceiving  each  of  the  said  various  persons  (whose 
names  are  to  the  grand  jurors  aforesaid  unknown)  by  induc- 
ing them,  the  said  various  persons  (whose  names  are  to  the 
grand  jurors  aforesaid  unknown),  to  pay  him,  the  said  L.  H. 
(doing  business  as  aforesaid),  a  sum  of  money,  to  wit,  $ . 

And  the  grand  jurors  aforesaid,  upon  their  oaths  and  af- 
firmations aforesaid,  do  further  present  that  the  said  L.  H. 
(doing  business  as  aforesaid)  did  wrongfully  and  unlawfully, 
then  and  there,  and  in  execution  of  said  artifice  and  scheme, 
and  misusing   the   post-office  establishment  of  the  United 

States,  receive  and  take  from  the  post-office  in ,  various 

letters  addressed  to  L.  H.  &  Co., , (a  more  par- 
ticular description  of  said  letters  being  to  the  grand  jurors 
aforesaid  unknown),  as  mailed  by  said  various  persons  (whose 
names  are  to  the  grand  jurors  aforesaid  unknown)  at  various 
post-offices  of  the  United  States,  the  names  of  the  said  post- 
offices  being  to  the  grand  jurors  aforesaid  unknown,  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  United 
States  of  America. 


436  CRIMINAI^   PROCEEDINGS. 

Second.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
and  affirmations  aforesaid,  do  further  present  that  L.  H.  (do- 
ing business  under  the  name  and  style  of  L-  H,  &  Co.),  on, 

to  wit,  the day  of ,  in  the  year  of  our  Lord,  18 — , 

in  the  county  of ,  in  the  state  of ,  in  the  circuit  and 

district  aforesaid,  and  within  the  jurisdiction  of  this  court, 
did  then  and  there,  unlawfully,  knowingly,  and  fraudulently, 
devise  a  scheme  and  artifice  to  defraud  one  W.  C,  and  other 
persons  (whose  names  are  to  the  grand  jurors  aforesaid  un- 
known), said  scheme  and  artifice  to  be  effected  by  opening 
correspondence  with  him,  the  said  W.  C,  and  other  persons 
(whose  names  are  to  the  grand  jurors  unknown),  by  means 
of  the  post-office  establishment  of  the  United  States,  and 
which  said  scheme  and  artifice  to  defraud  in  the  advertise- 
ment, letter,  or  circular,  in  the  words  and  figures  following, 
to  wit :  \here  set  forth  the  advertisement.,  circular.,  or  letter  in 
fidl\ 

And  the  grand  jurors  aforesaid,  upon  their  oaths  and 
affirmations  aforesaid,  do  further  present  that  the  said  scheme 
and  artifice,  as  set  forth  in  said  advertisement,  letter,  or  cir- 
cular, issued  by  said  L.  H.  (doing  business  as  aforesaid),  was 
false  and  fraudulent,  among  other  things,  in  this,  to  wit:  that 
he,  the  said  L.  H.  (doing  business  as  aforesaid),  was  not  de- 
sirous of  employing  persons  to  advertise  electric  belts,  and 
tack  up  advertisements  and  show-cards  of  electric  goods  in 
town  and  country  upon  the  terms  as  set  forth  in  said  adver- 
tisement, letter,  or  circular,  as  aforesaid,  and  never  intended 
to  enter  into  an  agreement  to  pay  the  said  person  so  intro- 
ducing two  electric  belts,  and  securing  written  testimonials  as 

aforesaid,  a  monthly  salary  of  $ (payable  semi-monthly), 

and  all  necessary  expenses  to  advertise  said  belts;  and,  also, 
in  this,  to  wit:  that  he,  the  said  L.  H.  (doing  business  as 
aforesaid),  was  not  desirous  of  making  two  trial  belts  abso- 
lutely free  to  all  honest  applicants  for  said  employment,  and 

never  intended  to  refund  the  said  $ ,  as  stated  in  said 

advertisement,  letter,  or  circular,  as  aforesaid,  if  they,  the 


INDICTMENTS    IN   SPECIAL   CASES.  437 

said  persons,  applicants  as  aforesaid,  would  pay  the  same  for 
said  two  trial  belts  as  a  guarantee  after  they,  the  said  per- 
sons, had  commenced  work  permanently  by  the  month,  as 
aforesaid,  and  n,ever  intended  to  employ  said  persons,  appli- 
cants, as  aforesaid,  permanently  by  the  month,  as  therein 
stated,  but  was  so  falsely  pretending  to,  deceiving,  and  de- 
frauding the  said  W.  C,  and  other  persons  (whose  names  are 
to  the  grand  jurors  aforesaid  unknown),  by  inducing  him, 
the  said  W.  C,  and  other  persons  (whose  names  are  to  the 
grand  jurors  aforesaid  unknown),  to  pay  him,  the  said  L.  H. 
(doing  business  as  aforesaid),  a  sum  of  money,  to  wit,  $ . 

And  the  grand  jurors  aforesaid,  upon  their  oaths  and  af- 
firmations aforesaid,  do  further  present  that  the  said  L.  H. 
(doing  business  as  aforesaid)  did  then  and  there,  unlawfully 
and  knowingly,  and  in  execution  of  said  scheme  and  artifice, 
and  misusing  the  post-office  establishment  of  the  United 
States,  place  in  a  post-office  of  the  United  States,  to  wit,  in 
the  postoffice  at , ,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  a  certain  let- 
ter, to  wit,  a  letter  addressed  to  W.  C, , ,  contrary 

to  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  United  States  of 
America.  J-  H., 

United  States  Attorney. 

A  true  bill. 

H.  B.,  Foreman. 

Taken  from  the  record  in  U.  S.  vs.  John  C.  Emory,  and  sustained  in 
the  Circuit  Court  of  the  United  States  for  the  Southern  District  of 
Ohio. 


438  CRIMINAL   PROCEEDINGS. 

No.  475. 

Scheme  to  Defraud — Misuse  of  Mails    (Insurance  Co.)  (i). 

The  United  States  of  America,  ,, 

^-      •        /•  No. . 

District  of ,  ss. 

In   the    District  Court   of  the  United  States,  within  and  for 

the District  of ,  in  the Judicial  Circuit,  of 

the  Term  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and . 

The  grand  jurors  of  the  United  States  of  America,  duly 

empaneled,  sworn,  and  charged  to  inquire  within  and  for  the 

district,  upon  their  oaths  and  affirmations,  present  that  L. 

H.,  on,  to  wit,  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of ,, 

and  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction    of    this    court,    having  theretofore 

devised  a  scheme  and  artifice  to  defraud  the  C.  O.  Co.,  N. 

B.,  S.  A.  S.,  and  certain  other  persons,  whose  names  are  to 

these  grand   jurors  unknown,  of  large  sums  of  money,  to 

wit,     $ ,  to  be  effected  by  intending  to  open,  and  by 

opening,  correspondence  and  communication  with  the  said 

persons   and    corporation    last    above-named,    and   certain 

unknown  persons,  by  means  of  the  post-office  establishment 

of  the  United  States,  which  said  use  and  misuse  of  the  pos  t- 

office  establishment  of  the  United  States  was  a  part  of  the 

said  scheme  to  defraud,  and  which  said  scheme  and  artifice 

to  defraud  was  and  is  in  substance  and  effect  as  follows,  to 

wit :  to  form,  organize,  and  carry  on  certain  pretended  fire 

and  marine  insurance  companies  under  the  names,  to  wit, 

The  C.  Fire  Insurance  Co.,  of ,  The  E.  Fire   Insurance 

Co.,  of ,  The  W.  Fire  and  Marine  Insurance  Co.,  of , 

The  H.  Insurance  Co.,  of ,  and  the  U.  S.  Fire  Insurance 

Co.,  of ;  and  pretending  that  said  insurance  companies 

were  owned  and  conducted  and   managed  by  men  of  good 

standing    in    the   community,    and  possessed    of    property, 

assets,  and  funds  to  meet  losses  and  damages  by  fire,  which 


INDICTMENTS    IN    SPECIAL    CASES.  439 

might  arise  to  persons  assured,  and  to  whom  policies  of 
insurance  had  been  and  would  be  issued,  when,  in  truth  and 
in  fact,  the  said  pretended  fire  insurance  companies,  as  above 
named  and  set  forth,  were  fictitious  and  fraudulent,  and  were, 
in  fact,  carried  on  by  the  said  L.  H.,  and  other  persons  whose 
names  are  to  these  grand  jurors  unknown,  as  schemes  and 
artifices  to  defraud  the  persons  and  parties  insured  out  of 
the  money  paid  as  premiums,  and  never  intending  to  pay 
any  loss  or  damage  by  fire  to  the  persons  insured,  and  to 
whom  the  said  so-called  policies  of  insurance  were  issued. 

And  the  grand  jurors  aforesaid  further  say  that  the  said 
defendants  above  named,  and  other  persons  to  these  grand 
jurors    unknown,    in    the   names    of    the    above-mentioned 

insurance  companies  of ,  and  upon  the  payment  by  the 

said  C.  O.  Co.,  N.  B.,  and  S.  A.  S.,  of  $ ,  issued  to  the  last- 
named  parties  and  corporation  and  persons  certain  so-called 
policies  of  insurance  against  damage  or  loss  by  fire;  and 
which  said  pretended  insurance  companies  were  then  and 
there  fictitious  and  fraudulent  in  this,  to  wit,   that  no  such 

companies  as  the  C.  Fire  Insurance   Co.,  of ,  The    E. 

Fire  Insurance  Co.,  of ,  the  W.  Fire  and  Marine  Insur- 
ance Co.,  of ,  The  H.  Fire  Insurance  Co.,  of ,  and 

the    U.    S.    Fire    Insurance  Co.,   of ,  all  of ,  then 

existed  or  have  a  place  of  business  in  said  places  in  — ■ — ,  nor 
is  there  any  ofiice  of  such  companies,  nor  persons  carrying 
on  the  business  for  and  in  behalf  of  such  companies,  nor  do 

such  companies  own  property,  funds,  or  assets  in ,  or 

elsewhere,  as  they,  the  said  above-named  defendants,  then 
and  there  well  knew. 

And  the  grand  jurors  aforesaid,  upon  their  oaths  and 
affirmations  aforesaid,  do  further  present  that  L.  H.,  in 
executing    said    scheme    and    artifice    to    defraud,   and   in 

attempting  so  to  do,  did,  on  the day  of ,  1894,  then 

and  there  receive  from   the  post-office  at , ,  a  large 

number,  to  wit,  five  registered  letters,  directed  as  follows : 


44©  CRIMINAL    PROCEEDINGS. 

No. ,  The  C.  Fire  Insurance  Company, , . 

No. ,  The  E.  Fire  Insurance  Company, , . 

No. ,  The  W.  Fire  and  Marine  Insurance  Company, 


No. ,  The  H.  Fire  Insurance  Company, , 

No. ,  The  U.  S.  Fire    Insurance    Company, 


He,  the  said  L.  H.,  intending  then  and  there  to  defraud 
the  said  C.  O.  Co.,  N.  B.,  and  S.  A.  S.,  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  United  States  of  America. 

Second.     And  the  grand  jurors  aforesaid,  upon  their  oaths 
and  affirmations  aforesaid,  do  further  present  that  L.  H.,  on, 

to  wit,  the day  of ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  ,  in  the  county  of  , 

state  of ,  in  the  circuit  and  district  aforesaid,  and  within 

the  jurisdiction  of  this  court,  having  theretofore  devised  a 
scheme  and  artifice  to  defraud  one  N.  B.,  and  certain  persons 
whose  names  are  to  these  grand  jurors  unknown,  of  large 

sums  of  money,  to  wit,  % ,  to  be  efiected  by  intending  to 

open,  and  by  opening  a  correspondence  and  communication 
with  the  said  N.  B.,  and  unknown  persons,  by  means  of  the 
post-ofiice  establishment  of  the  United  States,  which  said 
use  and  misuse  of  the  post-office  establishment  of  the 
United  States  was  a  part  of  the  said  scheme  to  defraud,  and 
which  said  scheme  and  artifice  to  defraud  was  and  is  in  sub- 
stance and  effect  as  follows,  to  wit :  By  making  and  causing 
to  be  made  false  and  fraudulent  representations  to  induce  the 
said  N.  B.,  and  certain  other  persons  whose  names  are  to 
these  grand  jurors  unknown,  to  insure  their  buildings,  ma- 
chinery, and  other  property  in  the  following-named  company, 

the  W.  Fire  and  Marine  Insurance  Company,  of , , 

and  representing  said  company  to  be  carrying  on  a  legitimate 
business  as  insurers  against  loss  or  damage  by  fire,  and 
representing  that  said  company  was  then  and  there  owned, 
and  conducted,  and  managed  by  men  of  good  standing  in  the 


INDICTMENTS   IN   SPECIAL   CASES.  441 

community,  and  that  said  company  was  solvent,  and  pos- 
sessed of  capital  and  means  to  pay  the  losses  and  damage  by 
fire  which  might  arise  and  occur  to  the  persons  insured,  and 
to  \5rh0m  policies  of  insurance  would  be  issued  upon  the  pay- 
ment of  certain  premiums;  when,  in  truth  and  in  fact,  said 
pretended  insurance  company,  to  wit,  the  W.  Fire  and  Ma- 
rine Insurance  Company,  of  , ,  was  fictictious  and 

fraudulent,  and  was  carried  on  by  the  said  L.  H.,  and  the 
persons  whose  names  are  to  these  grand  jurors  unknown,  as 
a  scheme  and  artifice  to  defraud  the  persons  assured,  and  to 
whom  policies  of  insurance  were  issued  out  of  the  money 
paid  as  premiums,  and  never  intending  to  pay  any  loss  or 
damage  by  fire  to  the  persons  assured,  and  to  whom  policies 
were  issued,  and  said  policies  and  said  company  were  schemes 
and  artifices  to  defraud  ; 

And  the  g^and  jurors  aforesaid  further  say  that  the  said  L. 
H.,  and  other  persons  whose  names  are  to  these  grand  jurors 
unknown,  in  the  name  of  the  W.  Fire  and  Marine  Insurance 

Company,  of , ,  and  upon  the  payment  by  the  said 

N.  B.  of  $ to  the  said  L.  H.,  and  other  persons  as  afore- 
said, issued  to  the  said  N.  B.  a  so-called  policy  of  insurance, 
undertaking  to  insure  the  said  N.  B.  against  damage  or  loss 
by  fire  upon  the  building  and  goods  of  the  said  N.  B.,  be- 
tween the day  of ,  18 — ,  and  the day  of , 

18 — ,  as  set  forth  in  the  said  policy,  for  the  full  sum  of  $ , 


and  which  said  policy  of  insurance  is  too  voluminous  to  be 
set  forth  in  this  instrument,  and  which  said  insurance  com- 
pany was  then  and  there  fictitious  and  fraudulent  in  this,  to 
wit,  that  no  such  company  existed,  nor  has  a  place  of  business 

in , ,  nor  elsewhere,  nor  is  there  any  office  of  such 

company  or  persons  carrying  on  the  business  for  and  on  behalf 
of  such  company,  nor  does  such  company  own  funds  or  assets 

in , ,  nor  elsewhere,  as  he,  the  said  L.  H.  and  the 

said  other  persons  then  and  there  well  knew ;  and  although 
the  said  N.  B.  suffered  loss  and  damage  by  fire,  the  said 
company  never  paid,  and  never  intended  to  pay  or  compen- 
sate, him  for  such  loss  ; 


442  CRIMINAL    PROCEEDINGS. 

And  the  grand  jurors  aforesaid,  upon  their  oaths  and  affir- 
mations aforesaid,  do  further  present  that  L.  H.,  in  executing 
said  scheme  and  artifice  to  defraud,  and  in  attempting  so  to 
do,  did  then  and  there  receive  from  the  post-office  at , 


,  one  registered  letter,  No. ,  directed  as  follows,  to 

L.  H.,  President  of  W.  Fire  and  Marine  Insurance  Company, 

,  ,  No. street, ,  and  registered  

day  of ,  1 8 — , , ,  he,  the   said  L.  H.,  and   the 

said  other  persons  whose  names  are  to  these  grand  jurors 
unknown,  intending  then  and  there  and  thereby  to  defraud 
the  said  N.  B.,  and  the  misuse  of  the  post-office  establish- 
ment of  the  United  States,  by  him,  the  said  L.  H.,  and  the 
said  other  persons  whose  names  are  to  the  grand  jurors  un- 
known, as  aforesaid,  being  then  and  there  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  United  States  of  America. 
A  true  bill.  J.  H., 

H.  B.,  United  States  Attorney. 

Foreman. 

(i)-  Taken  from  the  record  in  U.  S.  vs.  John  R.  Elderkin,  and  sus- 
tained in  the  District  Court  of  the  United  States  for  the  Southern  Dis- 
trict of  Ohio. 


No.  476. 

Mailing  Lottery  Circulars  (R.  S.,  Sec.  3894,  as  amended 
September  19,  i8go). 

The  United  States  of  America,  xt 

No. , 

District  of ,  ss. 

In  the  District  Court  of  the  United  States,  within  and  for  the 

District  of ,  in  the  Judicial  Circuit,  of 

the  Term  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and : 

Pirs^  Count.  The  grand  jurors  of  the  United  States  of 
America,  duly  empaneled,  sworn,  and  charged  to  inquire 
within  and  for  the  said  district,  upon  their  oaths  and  affirma- 


INDICTMENTS    IN    SPECIAL    CASES.  445, 

tions,  present ythat  L.  H.,  on,  to  wit,  the day  of ,  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and , 

in  the  county  of ,  in  the  state  of ,  in  the  circuit  and 

district  aforesaid,  and  within  the  jurisdiction  of  this  court, 
did  knowingly  cause  to  be  delivered  by  mail  certain  cir- 
culars forbidden  to  be  delivered  by  mail,  to  wit :  a  certain 
circular  and  publication  of  and  concerning  a  lottery  offer- 
ing prizes,  which  said  circular  and  publication  contained 
an  advertisement  and.  list  of  prizes  awarded  at  a  drawing  of 
said  lottery,  which  circular  and  publication  was   numbered 

,  and  purported  to  be  issued  from  the  banking-house  of 

L.  H.,  at  No. street,  was  dated , day  of 

,  1894,  and  was  inclosed  in  an  envelope  directed  to  J.  B., 

No. street, , ,  in  said  district,  and  was 

carried   by  mail   for   delivery  to  said   J.  B.,  No. 

street, , ;  did  then  and  there  unlawfully  and  know- 
ingly cause  said  circular  and  publication  concerning  said  lot- 
tery', \vhich  circular  and  publication  is  too  voluminous  to  be 
spread  upon  the  records  of  this  honorable  court,  to  be  deliv- 
ered by  mail,  according  to  said  direction,  to  said  J.  B.,  No. 
street, , ,  the  knowingly  causing  said  cir- 
cular and  publication  to  be  delivered  by  mail,  as  aforesaid, 
being  then  and  there  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  United  States  of  America. 

Second  Count.    And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L. 

H.,  on,  to  wit,  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of , 

in  the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  did  then  and  there,  un- 
lawfully and  knowingly,  cause  to  be  delivered  a  large  num- 
ber, to  wit,  [fifteen,  or  as  may  be]  of  circulars  and  publica- 
tions concerning  a  lottery'  offering  prizes  to  persons  whose 
names  and  post-office  addresses  are  to  these  grand  jurors  un- 
known, each  of  which  circulars   and  publications   was   in- 


444  CRIMINAL   PROCEEDINGS. 

closed  in  an  envelope  and  directed  to  a  person  whose  name 
and  post-office  address  is  to  these  grand  jurors  unknown,  in 
said  district,  said  large  number  of  circulars  and  publications, 
inclosed  in  envelopes  and  directed  as  aforesaid,  having  been 

theretofore  on  the  day  of  ,  i8 — ,  unlawfully  and 

knowingly  deposited  and  caused  to  be  deposited  in  a  post- 
office  of  the  United  States,  to  wit,  the  post-office  at ,  in 

the  state  of ,  for  delivery  by  mail  to  said  persons  whose 

names  and  post-office  addresses  are  to  these  grand  jurors  un- 
known, in  said  district,  according  to  the  directions  on  said 
envelopes,  as  aforesaid,  and  which  circulars  and  publications 
were  then  and  there  carried  by  mail  and  delivered  to  said 
unknown  persons  in  said  district;  the  causing  to  be  depos- 
ited by  the  said  L.  H.  of  said  circulars  and  publications,  to 
said  persons,  by  mail  as  aforesaid,  being  then  and  there  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  United  States 
of  America.  J-  H., 

United  States  Attorney. 
A  true  bill. 

H.  B.,  Foreman. 

Taken  from  the  record  in  U.  S.  vs.  E.  H.  Horner,  and  sustained  in 
the  District  Court  of  the  United  States  for  the  Southern  District  of 
Ohio. 


No.  477. 

Mailing  Libelous  Postal  Cards  (Act  of  Sept.  26,  1888.) 

The  United  States  of  America,  xt 

^.      .        r  No. . 

District  of ,  ss. 

In  the  District  Court  of  the  United  States,  within  and  for 

the District  of ,  in  the Judicial  Circuit, 

of  the  Term  of ,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and : 

First  Count.     The  grand  jurors  of  the  United  States  of 

America,  duly   empaneled,  sworn,    and   charged  to  inquire 


INDICTMENTS   IN   SPECIAL   CASES.  445 

within  and  for  the  said  district,  upon  their  oaths  and  affirma- 
tions, present  that  L.  H,,  on,  to  wit,  the day  of ,  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and , 

in  the  county  of ,  in  the  state  of ,  in  the  circuit  and 

district  aforesaid,  and  within  the  jurisdiction  of  this  court, 
did  then  and  there  unlawfully  and  knowingly  deposit  and 
cause  to  be  deposited  in  a  post-office  of  the  United  States,  to 

wit,  the  post-office  at ,  in  the  state  of ,  for  mailing 

and  delivery,  a  certain  postal  card,  otherwise  mailable  by 

law,   directed   to  A.  H., , ,  and   postmarked  , 

, day  of ,  3:30  p.m.,  1894,  upon  which  postal 

card  were  then  and  there  written  epithets,  terms,  and  lan- 
guage of  a  libelous,  defamatory,  and  threatening  character^ 
which  epithets,  terms,  and  language  were  then  and  there  cal- 
culated, by  the  terms  and  manner  and  style  of  display,  and 
obviously  intended  to  reflect  injuriously  upon  the  character 
and  conduct  of  one  A.  H.,  and  which  epithets,  terms,  and 
language  were  and  are  of  the  following  tenor  and  efiect, 
that  is  to  say :  [sei  forth  terms  and  language  used  i?t  fult\y 
which  epithets,  terms,  and  language  he,  the  said  L.  H.,  then 
and  there  well  knew  were  of  a  threatening  character  and 
were  calculated,  as  aforesaid,  to  reflect  injuriously  upon  the 
character  and  conduct  of  said  A.  H.,  and  that  the  same  were 
obviously  intended  to  so  reflect,  and  were  by  him,  the  said 
L.  H.,  then  and  there,  intended  to  so  reflect  upon  the  char- 
acter and  conduct  of  the  said  A.  H.,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  United  States  of  America. 

J.  H., 
United  States  Attorney. 
A  true  bill. 

H.  B.,  Foreman. 

Taken  from  the  record  in  the  U.  S.  vs.  Harry  B.  Clutes,  and  sustained 
by  the  District  Court  of  the  United  States  for  the  Southern  District  of 
Ohio. 


44^  CRIMINAL   PROCEEDINGS. 

No.  478. 

Taking  Obscene  Pamphlet  from  the  Mail  (i)  (R.  S.,  Sec.  3893) 

The  United  States  of  America,  xt 

No. . 

District  of ,  ss. 

In  the  District  Court  of  the  United  States,  within  and  for 

the District  of ,  in  the Judicial  Circuit, 

of  the  Term  of ,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and . 

First  Count.  The  grand  jurors  of  the  United  States  of 
America,  duly  empaneled,  sworn,  and  charged  to  inquire 
within  and  for  the  said  district,  upon  their  oaths  and  affirma- 
tions, present  that  L.  H.,  on,   to  wit,  the day  of , 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

,  in  the    county   of ,  in    the    state    of ,  in   the 

circuit  and  district  aforesaid,  and  within  the  jurisdiction  of 
this  court,  did  then  and  there  unlawfully  and,  knowingly 
cause  to  be  taken  from  the  mails  of  the  United  States,  for 
the  purpose  of  circulating  and  disposing  of  the  same,  a 
certain  obscene,  lewd,  and  lascivious  pamphlet,  entitled 
\set  forth  the  title]  ,  and  which  said  obscene,  lewd,  and  las- 
civious pamphlet,  entitled  as  aforesaid,  was  inclosed  in  a 
wrapper  and  directed  to  A.  M.,  and  had  been  conveyed  in  the 
mails  of  the  United  States,  and  which  said  obscene,  lewd, 
and  lascivious  pamphlet  contains  language  too  lewd,  ob- 
scene, and  lascivious  to  be  set  forth  in  the  records  of  this 
honorable  court ;  he,  the  said  L.  H.,  then  and  there  well 
knowing  the  said  pamphlet  to  be  obscene,  lewd,  and  las- 
civious, and  knowingly  causing  the  same  to  be  taken  from 
the  mails  of  the  United  States,  for  the  purpose  aforesaid,  by 
him,  the  said  L.  H.,  being  then  and  there  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  United  States  of 
America.  J-  H., 

A  true  bill.  United  States  Attorney. 

H.  B.,  Foreman, 
(i)  Taken  from  the  record  in  U.  S.  vs.  Miller,  and  sustained  in  the 
District  Court  of  the  United  States  for  the  Southern  District  of  Ohio. 


INDICTMENTS    IN   SPECIAL   CASES.  447 

No.  479. 

Mailing  Obscene  Letter  (i)   (R.  S.,  Sec.  3893,  as  amended 
September  26,  1888). 

The  United  States  of  America,  ^.^ 

_.       .         .  JNO. . 

District  of  ,  ss. 

In  the  District  Court  of  the  United  States,  within  and  for  the 

District  of ,  in  the Judicial  Circuit,  of  the 

Term  of ,  in  the  year  of    our    Lord   one  thousand 

eight  hundred  and . 

First  Count.  The  grand  jurors  of  the  United  States  of 
America,  duly  empaneled,  sworn,  and  charged  to  inquire 
within    and    for    the    said    district,    upon    their   oaths    and 

affirmations,  present  that  L.  H.,  on,  to  wit,  the day  of 

,  in  the  year  of  our  Lord  one  thousand  eight   hundred 

and ,  in  the   county  of ,  in  the    state  of ,  in  the 

circuit  and  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  did  then  and  there  unlawfully  and  knowingly  deposit 
and  caused  to  be  deposited  in  a  post-office  of  the  United 

States,  to  wit,  the  post-office  at , ,  for  maiMng  and 

delivery,  certain  non-mailable  matter,  to  wit,  a  letter  in- 
closed in  an  envelope,  and  which  said  letter  was  ob- 
scene, lewd,  and  lascivious,  and  is  unfit  to  be  set  forth 
in  this  instrument,  and  to  be  spread  upon  the  records  of 
this  honorable  court,  and  which  said  envelope,  containing  the 
letter  as  aforesaid,  was   then  and  there  directed  to  G.  H., 

, ,  he,  the  said  L.  H.,  knowing  the  said  letter  to  be 

obscene,  lewd,  and  lascivious,  and  the  mailing  by  him   as 
aforesaid  being  then  and  there  contrary  to  the  form  of  the 
statute  in  such  case  made   and   provided,  and   against   the 
peace  and  dignity  of  the  United  States  of  America. 
A  true  bill.  J.  H., 

H.  B.,  Foreman.  United  States  Attorney. 

(i)  Taken  from  the  record  in  the  U.  S.  vs.  Charles  A.  Love,  and  sus- 
tained in  the  District  Court  of  the  United  States  for  the  Southern 
District  of  Ohio, 


448  CRIMINAL   PROCEKDINGS. 

No.  480. 

Indictment  for  Robbing  Post-Office  (i)  (R.  S.,  Sees. 
5478  and  5475). 

The  United  States  of  America,  ,., 

'  No. . 

District  of ,  ss. 

In  the  Circuit  Court  of  the  United  States,  within  and  for  the 

District  of ,  in  the Judicial  Circuit,  of  the 

Term  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and . 

First  Count.  (R.  S.,  Sec.  5478.)  The  grand  jurors  of  the 
United  States  of  America,  duly  empaneled,  sworn,  and 
charged  to  inquire  within  and  for  the  said  district,  upon 
their  oaths  and  affirmations,  present  that  L.  H.,  on,  to  wit, 

the day  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and ,  in  the  county  of  ,  in  the  state 

of ,  in  the  circuit  and  district  aforesaid,  and  within  the 

jurisdiction  of  this  court,  did  then  and  there  unlawfully, 
willfully,  and  forcibly  break  into  a  certain  building  used  in 
part  as  a  post-office  of  the  United  States,  to  wit,  a  building 

in  ,  in   said  county,  so    used   as  aforesaid,  with 

intent  to  commit  larceny  therein,  that  part  of  the  building 
used  as  a  post-office  as  aforesaid,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  United  States  of  America. 

Second  Count.  (R.  S.,  Sec.  5475.)  And  the  grand  jurors 
aforesaid,   upon   their  oaths  and    affirmations  aforesaid,   do 

further  present  that  L.  H.,  on,  to  wit,  the day  of  , 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
,  in  the  county  of ,  in  the  state  of ,  in  the  cir- 
cuit and  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  did  then  and  there  unlawfully  and  willfully  steal  and 
purloin  certain  property  belonging  to  the  post-office  depart- 
ment of  the  United  States,  to  wit,  eight  hundred  postage 
stamps  of  the  denomination  of cents,  two  hundred  post- 
age stamps  of  the  denomination  of cents,  three  hundred 


INDICTMENTS   IN    SPECIAL   CASES.  449 

postage  stamps  of  the  denomination  of  cents,  which 

said  property  was  of  the  vahie  of  more  than  twenty -five  dol- 
lars, contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  United 
States  of  America. 

Third  Count.     And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L. 

H.,  on,  to  wit,  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of , 

in  the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  did  then  and  there  un- 
lawfully and  willfully  appropriate  to  his  own  use  for  lucre 
and  gain,  certain  property  belonging  to  the  post-office  de- 
partment of  the  United  States,  to  wit,  eight  hundred  postage 

stamps  of  the   denomination  of cents,   two   hundred 

postage  stamps  of  the  denomination  of  cents,  three 

hundred  postage  stamps  of  the  denomination  of cents, 

eight  hundred  stamped  envelopes  of  the  denomination  of 

cents,  which  said  property  was  of  the  value  of  more 

than  twenty-five  dollars,  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  United  States  of  America.  J.  H., 

A  true  bill.  United  States  Attorney. 

H.  B.,  Foreman. 

(I)  Taken  from  the  record  in  the  U.  S.  vs.  Jesse  Peterson,  and  sus- 
tained in  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  Ohio. 


45©  CRIMINAL   PROCEEDINGS. 

No.  481. 

Violation  of  Postal  Laws  (i)  (R.  S.,  Sees.  3892  and  6469). 

The  United  States  of  America,  ^     

District  of ,  ss. 

In  the  District  Court  of  the  United  States,  within  and  for 

the District  of ,   in  the Judicial  Circuit, 

of  the  Term  of ,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and . 

First  Count.  The  grand  jurors  of  the  United  States  of 
America,  duly  empaneled,  sworn,  and  charged  to  inquire 
within  and  for  the  said  district,  upon  their  oaths  and  af- 
firmations, present  that  L.  H.,  on,  to  wit,  the day  of 

,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and ,  in  the  county  of ,  in  the  state  of ,  in  the 

circuit  and  district  aforesaid,  and  within  the  jurisdiction  of 
this  court,  did  then  and  there  unlawfully  take  a  letter  which 
had  been  in  the  post-office  of  the  United  States,  to  wit,  the 
post-office  at , ,  and  in  the  custody  of  a  letter-car- 
rier of  said  post-office,  before  it  had  been  delivered  to  the 
person  to  whom  it  was  then  and  there  directed,  and  which 

said  letter  was  then  and  there  directed  to  E.  H., street, 

, ,  and  the  said  L.  H.  did  then  and  there  unlaw- 
fully secrete  and  destroy  the  same,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  United  States  of  America. 

Second  Count.  And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do   further  present  that  L. 

H.,  on,  to  wit,  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of , 

in  the  state  of ,  and  within  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  did  then  and 
there  knowingly  obtain  by  deception,  from  a  person  having 
the  custody  thereof,  to  wit,  one  C.  M.,  a  letter  containing  an 
article  of  value,  which  said  letter  had  been  in  the  post-office 
of  the  United  States,  to  wit,  the  post-office  at , for 


INDICTMENTS   IN    SPECIAL   CASES.  451 

delivery  to  one  E.  H.,  and  which  said  letter  then  and  there 
contained    pecuniary  obligations  of  the  government  of  the 

United  States  of  the  denomination  and  value  of dollars, 

and  which  said  letter  was  then  and  there  directed  to  E.  H., 

street, , ,  and  he,  the  said  L.  H.,  did  then  and 

there  unlawfully  and  feloniously  embezzle  the  said  letter 
and  convert  the  same  to  his  own  use  before  its  delivery  to 
the  person  to  whom  it  was  directed,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  United  States  of  America. 

J.  H., 
United  States  Attorney. 
A  true  bill. 

H.  B.,  Foreman. 

Taken  from  the  record  in  U.  S.  vs.  Lewis  Montgomery,  alias  James 
Montgomery,  and  sustained  in  the  District  Court  of  the  United  States 
for  the  Southern  District  of  Ohio. 


No.  482. 

Embezzlement  of  Letters  (i)  (R.  S.,  Sec.  5467). 

The  United  States  of  America,  xt 

^  No. . 

District  of ,  ss. 

In  the  District  Court  of  the  United  States,  within  and  for 

the District  of ,  in  the  Judicial  Circuit, 

of  the  Term  of  ,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and . 

The  grand  jurors  of  the  United  States  of  America,  duly 
empaneled,  sworn,  and  charged  to  inquire  within  and  for  the 
district  of ,  upon  their  oaths  and  affirmations,  pre- 
sent that  L.  H.,  on,  to  wit,  the day  of ,  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  ,  in  the 

county  of ,  in  the  state  of ,  in  the  circuit  and  dis- 
trict aforesaid,  and  within  the  jurisdiction  of  this  court,  be- 
ing then  and  there  a  person  employed  in  the  postal  service 


452  CRIMINAL    PROCEEDINGS. 

of  the  United  States,  to  wit,  as  a  letter-carrier  of  the  post- 

oflEice  at , ,  and  a  certain  letter  having  come  into  his 

possession  as  such  letter-carrier,  and  which  was  intended  to 
be  delivered  from  said  post-office,  and  which  said  letter  had 
been  in  the  mails  of  the  United  States,  did,  then  and  there, 
unlawfully  and  feloniously,  embezzle  and  convert  to  his  own 
use  said  letter,  and  which  said  letter  then  and  there  con- 
tained three  pecuniary  obligations  of  the  United  States,  each 
one  of  the  denomination  and  value  of  one  dollar,  and  of  the 
total  value  of  three  dollars,  which  said  letter  was  then  and 
there  inclosed  in  an  envelope  and  directed  to  M.  C,  No. 


street,  care  of  E.  F., , .     And  the  grand  jurors 

aforesaid,  upon  their  oaths  and  affirmations  aforesaid,  do 
further  present  that  the  said  L.  H.,  letter-carrier  as  aforesaid 
did  then  and  there,  unlawfully  and  feloniously,  embezzle  and 
convert  to  his  own  use  said  letter  and  its  contents,  with  in- 
tent to  defraud,  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity 
of  the  United  States  of  America. 

Second  Count.     And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L.  H., 

on,  to  wit,  the day.  of ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and ,  in  the  county  of ,  in 

the  state  of  ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  being  then  and  there  a 
person  employed  in  the  postal  service  of  the  United  States, 

to  wit,  as  a  letter-carrier  of  the  post-office  at , ,  and 

a  certain  letter  having  come  into  his  possession  as  such  let- 
ter-carrier, and  which  was  intended  to  be  conveyed  by  mail, 
and   which   said   letter   was   inclosed   in  an   envelope   and 

directed    to    M.  C,  No.  street,  care   of   E.  F., 

, ,  and  which  said  letter  then  and  there  contained 

obligations  of  the  United  States  of  the  value  of  $ ;  and 

•he,  the  said  L.  H.,  as  aforesaid,  did  then  and  there,  unlaw- 
fully and  feloniously,  steal  and  take  out  of  said  letter,  which 
had  come  into  his  possession  as  aforesaid,  and  which  was  in- 


INDICTMENTS   IN   SPECIAL   CASES.  453 

tended  to  be  delivered  by  the  post-office,  the  said  sum  of  three 
dollars,  pecuniar)^  obligations  of  the  United  States,  as  afore- 
said, the  said  money  not  being  owned  by  the  said  L.  H.  be- 
fore the  delivery  of  said  letter  to  the  person  to  whom  it  was 
directed,  and  with  intent  then  and  there  to  defraud,  contrary 
to  the  form  of  the  statute^  in  such  case  made  and  provided,, 
and  against  the  peace  and  dignity  of  the  United  States  of 
America.  J.  H., 

United  States  Attorney. 
A  true  bill. 

H.  B.,  Foreman. 

(i)  Taken  from  the  record  in  U.  S.  vs.  Orin  E.  Sparks,  and  sustained 
in  the  District  Court  of  the  United  States  for  the  Southern  District  of 
Ohio. 


No.  483. 

Embezzling   Money  Order  and   Postal   Funds  (i)  (R.  S., 
Sees.  4046  and  4053). 

The  United  States  of  America,  ^    

District  of ,  ss. 


In  the  District  Court  of  the  United  States,  within  and  for 

the District  of ,  in  the Judicial  Circuit,  of 

the  Term  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and . 

Pirsi  Count.  The  grand  jurors  of  the  United  States  of 
America,  duly  empaneled,  sworn,  and  charged  to  inquire 
within  and  for  the  said  district,  upon  their  oaths  and  affirm- 
ations, present  that  L.  H,,  on,  to  wit,  the day  of , 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
,  in  the  county  of ,  in  the  state  of ,  in  the  cir- 
cuit and  district  aforesaid,  and  within  the  jurisdiction  of  this 

court,  being  then  and  there  the  postmaster  at ,  county 

of ,  state,  of ,  and  then  and  there  connected  with 

the  business  and  operation  of  the  money-order  office  at 
,  county  of ,  state  of ,  as  aforesaid,  did  then 


454  CRIMINAI.    PROCEEDINGS. 

and  there,  unlawfully  and  knowingly,  convert  to  his  own 
use  and  embezzle  a  certain  portion  of  the  money-order  funds 

of  the  United  States,  to  wit,  the  sum  of dollars,  which 

said  money-order  funds  came  into  his  possession  as  such 
postmaster  and  person  connected  with  the  business  and  oper- 
ations of  the  money-order  office  as  aforesaid,. and  the  embez- 
zlement and  conversion  to  his  own  use  of  said  funds  as 
aforesaid,  being  then  and  there  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  United  States  of  America. 

Second  Count,     And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L. 

H.,  on,  to  wit,  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of , 

in  the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  being  then  and  there  the 

postmaster  at ,  county  of ,  state  of ,  and  as  such 

postmaster  having  the  temporary  custody  of  money,  which, 
by  law,  is  a  part  of  the  postal  revenue  of  the  United  States, 
did  then  and  there  unlawfully  convert  to  his  own  use,  and 
did  then  and  there  knowingly  and  willfully  neglect  to  de- 
posit the  same,  to  wit,  the  sum  of dollars,  postal  revenue 

of  the  United  States  as  aforesaid,  in  the  treasury  of  the 
United  States,  or  in  some  lawfully  authorized  depository  of 
such  revenues  of  the  United  States,  the  unlawful  conversion 
to  his  own  use,  as  aforesaid,  by  him,  the  said  L.  H.,  and  his 
knowingly  and  willfully  neglecting  to  deposit  said  postal 
revenues  as  aforesaid,  being  then  and  there  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  United  States  of 
America.  J.  H., 

A  true  bill.  United  States  Attorney. 

H.  B.,  Foreman. 

(i)  Taken  from  the  record  in  the  U.  S.  vs.  Aaron  G.  Albau!s:h,  and 
sustained  in  the  District  Court  of  the  United  States  for  the  Southern 
District  of  Ohio. 


INDICTMENTS   IN   SPECIAL   CASES.  455 

484. 

Stealing  Personal  Property  of  the  United  States  (i) 
(R.  S.,  Sec.  5456). 

The  United  States  of  America,  xt 

^.      .        ^  No. . 

District  of ,  ss. 


In  the  District  Court  of  the  United  States,  within  and  for  the 

District  of ,  in  the Judicial  Circuit,  of  the 

Term  of ,  in  the  year  of  our  Ivord  one  thousand 

eight  hundred  and . 

The  grand  jurors  of  the  United  States  of  America,  duly 
empaneled,  sworn,  and  charged  to  inquire  within  and  for  the 
said  district,  upon  their  oaths  and  affirmations,  present  that 

L.  H.,  on,  to  wit,  the day  of ,  in  the   year   of  our 

Lord  one  thousand  eight  hundred  and ,  in  the  county  of 

,  in  the  state  of ,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  did,  then  and 
there,  unlawfully  and  feloniously,  take  and  carry  away  from 
another,  to  wit,  from  R.  K.,  then  and   there  the  postmaster 

at , county,  in  the  state  of ,  personal  property 

belonging  to  the  United  States,  of  the  value  of  eleven  dollars, 
and  which  said  personal  property  then  and  there  consisted 
of  an  obligation  of  the  United  States,  to  wit,  an  United  States 
treasury  certificate  of  the  value  of  ten  silver  dollars  and  one 
dollar  in  silver  coin,  issued  and  coined  by  the  mints  of  the 
United  States,  of  the  value  of  one  dollar,  and  which  said 
personal  property,  as  aforesaid,  was  then  and  there  a  part  of 
the  postal  revenues  and  money-order  funds  of  the  post-office 
department  of  the  United  States,  the  felonious  taking  and 
carrying  away  of  the  same  by  him,  the  said  L.  H.,  with  in- 
tent then,  there,  and  thereby  to  defraud,  being  then  and 
there  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of 
the   United   States  of  America.  J.  H., 

A  true  bill,  United  States  Attorney. 

H.  B.,  Foreman, 
(i)  Taken  from  the  record  of  the  U.  S.  vs.  William  J.  Bums,  and  sus- 
tained in  the  District  Court  of  the  United  States  for  the  Southern  Dis- 
trict of  Ohio. 


456  CRIMINAL    PROCEEDINGS. 

No.  485. 

Falsely  Personating  Another  in  Violation  of  R.  S., 
Sec.  5435  (i). 

The  United  States  of  America,  -^     

District  of ,  ss. 

In  the  District  Court  of  the  United  States,  within  and  for 

the District  of ,  in  the  Judicial  Circuit,  of  the 

Term  of ,  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and . 

The  grand  jurors  of  the  United  States  of  America,  duly 
empaneled,  sworn,  and  charged  to  inquire  within  and  for  the 
said  district,  upon  their  oaths  and  affirmations,  present  that 

L.  H.,  on,  to  wit,  the day  of ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and ,  in  the  county 

of ,  in  the  state  of ,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  did  then  and 
there  unlawfully,  knowingly,  and  falsely  personate  and  rep- 
resent a  person  entitled  to  certain  wages  from  the  United 
States,  and  under  color  of  such  false  personation  receive  the 
money  of  a  person  really  entitled  to  receive  said  wages,  in 
this,  to  wit,  that  he,  the  said  L.  H.,  at  the  time  and  place 
aforesaid,  did  then  and  there  knowingly,  unlawfully,  and 
falsely  personate  and  represent  himself  to  be  one  W.  B.,  late 

private  Company  M, United  States  Cavalry  ;  he,  the  said 

W.  B.,  as  aforesaid,  being  then  and  there  the  person  really 
entitled  to  receive  said  wages  from  the  United  States,  to  wit, 

the  sum  of dollars,  as  extra  duty  pay  for  services  as 

nurse  in  a  hospital ;  and  he,  the  said  L.  H.,  did  then  and 
there,  under  color  of  such  false  personation,  to  wit,  as  being 
W.  B.,  receive  the  said  sum  of dollars,  wages  as  afore- 
said due  to  the  said  W.  B.  as  aforesaid ;  he,  the  said  L.  H., 
having  no  right,  authority,  or  power  to  personate  and  repre- 
sent the  said  W.  B.,  and  to  receive  the  said  wages  as  afore- 
said, as  he,  the  said  L.  H.,  then  and  there  well  knew,  and  in- 
tending then,  there,  and  thereby  to  defraud  the  said  W.  B., 


INDICTMENTS   IN   SPECIAL   CASES.  457 

contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  United 
States  of  America. 

Second.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
and  affirmations   aforesaid,  do   further   present   that   L-  H. 

on,  to  wit,  the day  of ,  i8 — ,  in  the  county  of , 

in  the  state  of ,  and  the  district  aforesaid,  did  then  and 

there  unlawfully,  knowingly,  and  falsely  personate  and  repre- 
sent a  person  entitled  to  certain  wages  from  the  United 
States,  and,  under  color  of  such  false  personation,  endeavor 
to  receive  the  money  of  a  person  really  entitled  to  receive  the 
said  wages  in  this,  to  wit,  that  he,  the  said  L.  H.,  did  then 
and  there  sign  a  certain  receipt  and  voucher  with  the  name 
of  W.  B.,  late  private  Company  M, United  States  Cav- 
alry, which  said  voucher  and  receipt  is  in  the  words  and  fig- 
ures following,  to  wit:  \set  forth  in  full  the  voucher\  he,  the 
said  W.  B.,  being  then  and  there  the  person  really  entitled 

to  said  wages  from  the  United  States,  to  wit,  the  sum  of 

dollars,  as  extra-duty  pay  as  such  private  in  Company  M, 

Regiment  United  States  Cavalry;  and  he,  the  said  L.  H., 

did  then  and  there,  under  color  of  such  false  personation,  to 
wit,  as  W.  B.,  endeavor  to  receive  and  obtain  the  said  sum 

of dollars,  wages  and  extra-duty  pay,  as  aforesaid,  to  the 

said  W.  B.,  he,  the  said  L.  H.,  having  no  right,  authority,  or 
power  to  personate  and  represent  the  said  W.  B.  as  aforesaid, 
or  to  receive  the  said  wages  as  aforesaid,  as  he,  the  said  L. 
H.,  then  and  there  well  knew;  he,  the  said  L.  H.,  intending 
then,  there,  and  thereby  to  defraud  the  said  W.  B.,  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  United  States  of 
America.  J.  H., 

A  true  bill.  United  States  Attorney. 

H.  B.,  Foreman. 

(i)  Taken  from  the  record  in  the  U.  S.  vs.  Adrian  I.  Jones,  and  sus- 
tained in  the  District  Court  of  the  United  States  for  the  Southern*Dis- 
trict  of  Ohio. 


458  CRIMINAL   PROCEEDINGS. 

No.  486. 

Falsely  Personating  an  Officer  of  the  United  States  (i) 
(Act  of  April  18,  1884). 

The  United  States  of  America,  ^    

District  of . 

In  the  District  Court  of  the  United  States,  within  and  for  the 

District  of ,  in  the Judicial  Circuit,  of  the 

Term  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and . 

First  Count.  The  Grand  Jurors  of  the  United  States  of 
America,  duly  empaneled,  sworn,  and  charged  to  inquire 
within  and  for  the  said  district,  upon  their  oaths  and  affirma- 
tions, present  that  L.  H.,  on,  to  wit,  the  day  of , 

in  the  year  of  our  Lord  one  thousand  eight   hundred  and 

,  in  the  county  of ,  in  the  state  of ,  in  the  circuit 

and  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  did  then  and  there  unlawfully  and  feloniously,  and 
with  intent  to  defraud  one  T.  M.,  falsely  assume  and  pretend 
to  be  an  employee  acting  under  the  authority  of  an  officer  of 
the  government  of  the  United  States,  to  wit,  a  civil  surgeon 
and  medical  examiner  duly  appointed  by  the  commissioner 
of  pensions  to  make  the  periodical  examinations  of  pension- 
ers which  are  or  may  be  required  by  law,  and  to  examine 
applicants  for  pensions  in  regard  to  their  disabilities,  and  the 
said  L.  H.  did  then  and  there  in  such  pretended  character, 
as  aforesaid,  take  upon  himself  to  act  as  such  medical  exam- 
iner and  civil  surgeon,  and  did  then  and  there  examine  the 
said  T.  M.  upon  his  bodily  ailments  and  diseases ;  he,  the 
said  T.  M.,  being  an  applicant  for  a  pension  under  the  laws 
of  the  United  States. 

And  the  grand  jurors  aforesaid  do  further  present  that  he, 
the  said  L.  H.,  was  not  then  and  there  an  employee  acting 
under  the  authority  of  an  officer  of  the  government,  to  wit, 
medical  examiner  and  civil  surgeon  appointed  by  the  com- 
missioner of  pensions,  as  he,  the  said  L.  H.,  then  and  there 
well  knew,  and  he,  the  said  L.  H.,  intending  then,  there,  and 
thereby  to  defraud  the  said  T.  M.,  contrary  to  the  form  of  the 


INDICTMENTS    IN   SPECIAL    CASES.  459 

statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  United  States  of  America. 

Second  Count.  And  the  grand  jurors  aforesaid,  on  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L. 

H.,  on,  to  wit,  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of , 

in  the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  did  then  and  there  un- 
lawfully, and  feloniously,  and  with  intent  to  defraud  one  T. 
M.,  pretend  and  falsely  assume  to  be  an  employee  acting 
under  the  authority  of  an  officer  of  the  government  of  the 
United  States,  to  wit,  a  civil  surgeon  and  medical  examiner^ 
duly  appointed  by  the  commissioner  of  pensions  to  make  the 
periodical  examinations  of  pensioners  which  are  or  may  be 
required  by  law,  and  also  to  examine  applicants  for  pensions 
in  regard  to  their  disabilities,  and  the  said  L.  H.  did  then 
and  there  in  such  pretended  character  as  aforesaid  receive 
from  the  said  T.  M.  certain  valuable  things,  to  wit,  meals, 
food  and  lodging;  he,  the  said  T.  M.,  being  then  and  there 
an  applicant  for  a  pension  under  the  laws  of  the  United 
States,  and  then  and  there  believing  the  said  L.  H.  to  be  the 
medical  examiner  and  employee  acting  under  the  authority 
of  the  commissioner  of  pensions. 

And  the  grand  jurors  aforesaid,  upon  their  oaths  and 
affirmations  aforesaid,  do  further  present  that  he,  the  said  L. 
H.,  was  not  then  and  there  an  employee  acting  under  the 
authority  of  an  officer  of  the  government,  to  wit,  medical 
examiner  and  civil  surgeon  appointed  by  the  commissioner 
of  pensions,  as  he,  the  said  L.  H.,  then  and  there  well  knew, 
and  he,  the  said  L.  H.,  then,  there,  and  thereby  intending  to 
defraud  the  said  T.  M,,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  and  dig- 
nity of  the  United  States  of  America.  J.  H., 

A  true  bill.  United  States  Attorney. 

H.  B.,  Foreman. 

(i)  Taken  from  the  record  in  U.  S.  vs.  George  L.  Fairbanks,  and 
sustained  in  the  District  Court  of  the  United  States  for  the  Southern 
District  of  Ohio. 


460  CRIMINAL    PROCEEDINGS. 

No.  487. 

Making  and  Presenting    False  Claim   for  Pension,  etc.  (i) 
(R.  S.,  Sec.  5438.) 

The  United  States  of  America, 

District  of ,  ss. 

In  the  District  Court  of  the  United  States,  within  and  for  the 

District  of ,  in  the Judicial  Circuit,  of  the 

Term  of ,  in   the  year  of  our  Lord  one   thousand 

eight  hundred  and . 

The  grand  jurors  of  the  United  States  of  America,  duly 
empaneled,  sworn,  and  charged  to  inquire  within  and  for  the 
district  of ,  upon  their  oaths  and  affirmations,  pre- 
sent that  L.  H.,  alias  A.  C,  on,  to  wit,  the day  of , 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

,  in  the  county  of ,  state  of ,  in   the  circuit 

and  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  did  then  and  there  unlawfully  make  and  cause  to  be 
made  a  certain  claim  upon  the  government  of  the  United 
States,  to  wit,  a  claim  to  be  placed  on  the  pension  rolls  of 
the  United  States  under  the  provisions  of  an  act  of  congress 
approved   June  27,  1890,  as  being  the  identical  A.  C,  who 

was  enrolled  on  the day  of ,  18 — ,  in  Company  A, 

Regiment,  Massachusetts  Colored  Troops,  as  a  private 

in  the  service  of  the  United  States  in  the  war  of  the  rebel- 
lion, and  who  served  at  least  ninety  days,  and  was  honorably 
discharged  therefrom,  and  who  was  partially  unable  to  earn 
a  support  by  manual  labor  by  reason  of  two  wounds  by  shells, 
and  other  disabilities,  and  knowing  such  claim  to  be  false, 
fraudulent,  and  fictitious,  and  which  said  false,  fraudulent, 
and  fictitious  claim  is  in  the  words  and  figures  following,  to 
wit:  [sei  oui  the  claim  in  full\  the  said  claim  being  false, 
fraudulent,  and  fictitious  in  this,  to  wit,  that  the  said  L.  H. 

was  not  the  identical  A.  C.  who  was  enrolled  on   the 

day  of ,  18 — ,  in  Company  A, Regiment,  Massa- 
chusetts United  States  Colored  Troops  as  a  private  in  the 
service  of  the  United  States  in  the  war  of  the  rebellion,  as  set 


INDICTMENTS    IN    SPECIAL   CASES.  461 

forth  in  said  declaration  for  invalid  pension,  as  he,  the  said  L. 
H.,  then  and  there  well  knew,  and  he,  the  said  L.  H.,  intend- 
ing then,  there,  and  thereby  to  defraud  the  United  States^ 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  United 
States  of  America. 

Second  Count.     And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L.  H., 

alias  A.  C,  on,  to  wit,  the day  of ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  ,  in  the  county  of 

,  in  the  state  of ,  in  the  circuit  and  district  aforesaid^ 

and  within  the  jurisdiction  of  this  court,  having  heretofore 
presented,  and  caused  to  be  presented,  for  approval  and  pay- 
ment to  an  officer  in  the  civil  servdce  of  the  United  States,  to 
wit,  to  the  commissioner  of  pensions,  a  person  duly  authorized 
by  law  to  approve  the  same,  a  certain  claim  against  the  gov- 
ernment of  the  United  States,  to  wit,  a  claim  for  invalid  pen- 
sion under  the  provisions  of  an  act  of  congress  approved  June 
27,  1890,  a  claim  to  be  placed  on  the  pension  rolls  of  the 
United  States,  and  setting  forth  in  substance  in   said  claim 

that  he  was  the  identical  A.  C.  who  was  enrolled  on  the 

day  of ,  18 — ,  in  Company  A, Regiment,  Massa- 
chusetts Colored  Troops,  as  a  private  in  the  service  of  the 
United  States  in  the  war  of  the  rebellion,  and  served  at 
least  ninety  days,  and  was  honorably  discharged  therefrom, 
and  that  he  was  partially  unable  to  earn  a  support  by  man- 
ual labor  by  reason  of  two  wounds  by  shells,  and  other  disa- 
bilities, did  then  and  there  knowingly  and  unlawfully,  and 
for  tne  purpose  of  obtaining  and  aiding  to  obtain  the  ap- 
proval of  said  claim,  knowing  it  to  be  false  and  fraudulent, 
make  a  certain  false  deposition,  which  said  deposition,  sub- 
scribed to  by  said  L.  H.,  alias  A.  C,  and  taken  and  sworn  to 
before  A.  R.,  a  special  examiner  of  the  pension  bureau  of  the 
United  States,  a  person  duly  authorized  by  law  to  take  the 
same,  and  wherein  the  law  authorizes  a  deposition  to  be 
taken,  and  which  said  deposition  contained  the  following 
statements,  to  wit:    "During  the  late  war  I  served  as  a  mem- 


462  CRIMINAL   PROCEEDINGS. 

ber  of  Company  A, Massachusetts  Infantry."     "  I  claim 

a  pension  on  account  of  wounds  on  my  right  arm,  and  several 

wounds  on  my  head,  received  at , ,  on  the day 

of ,1864." 

"I  assumed  the  name  of  A.  C.  when  I  joined   the 

Massachusetts."    "  While  I  lived  in county,  I  was  known 

by  the  name  of  L.  H." 

And  the  said  deposition  was  false  and  fraudulent  in  this,  to 
wit,  that  the  said  L.  H.,  alias  A,  C,  did  not  serve  as  a  mem- 
ber of  Company  A, Massachusetts   Infantry,  and  was 

not  wounded  on  his  head  at , ,  and  did  not  assume 

the  name  of  A.  C,  and  did  not  join  the Massachusetts 

Infantry,  as  stated  in  his  said  deposition,  as  he  then  and  there 
well  knew ;  he,  the  said  L.  H.,  alias  A.  C,  then  and  there 
well  knowing  said  claim  to  be  false,  fraudulent,  and  fictitious, 
and  then  and  there  well  knowing  said  deposition  made  in 
support  of  said  claim  to  be  false,  fraudulent,  and  fictitious, 
and  intending  then,  and  there,  and  thereby  to  defraud  the 
United  States  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity 
of  the  United  States. 

Third  Count.  And  the  grand  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present  that  L. 

H.,  alias  A.  C,  on,  to  wit,  the day  of ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and ,  in  the  county 

of ,  in  the  state  of ,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  did  then  and 
there  unlawfully  cause  to  be  presented  for  payment  and  ap- 
proval to  an  officer  in  the  civil  service  of  the  United  States, 
to  wit,  the  commissioner  of  pensions,  a  person  duly  author- 
ized by  the  United  States  to  approve  claims  for  pensions,  a 
certain  claim  upon  the  government  of  the  United  States  under 
the  provisions  of  an  act  of  congress  approved  June  27,  1890, 

as  being  the  identical  A,  C.  who  was  enrolled  on   the 

day  of ,  18 — ,  in  Company  A, Regiment  Massachu- 
setts Colored  Troops,  as  a  private  in  the  service  of  the  United 
States  in  the  war  of  the  rebellion,  and  who  served  at  least 


INDICTMENTS   IN   SPECIAL   CASES.  463 

ninety  days,  and  was  honorably  discharged,  and  who  was  par- 
tially unable  to  earn  a  support  by  manual  labor  by  reason 
of  two  wounds  by  shells,  and  other  disabilities,  knowing  such 
claim  to  be  false,  fraudulent,  and  fictitious,  and  which  said 
false,  fraudulent,  and  fictitious  claim  is  in  the  words  and 
figures  following,  to  wit,  [se^  out  the  claim  infull\ 

The  said  claim  being  false,  fraudulent,  and  fictitious  in 
this,  to  wit,  that  he,  the  said  L.  H.,  was  not  the  identical  A. 
C.  who  was  enrolled  on  the day  of ,  18 — ,  in  Com- 
pany A, Regiment  Massachusetts  United  States  Colored 

Troops,  as  a  private  in  the  service  of  the  United  States  in 
the  war  of  the  rebellion,  as  set  forth  in  said  declaration  for 
invalid  pension,  as  he,  the  said  L.  H.,  as  aforesaid,  then  and 
there  well  knew,  and  he,  the  said  L.  H.,  alias  A.  C,  intend- 
ing then,  there,  and  thereby  to  defraud  the  United  States, 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  United 
States  of  America.  J.  H., 

A  true  bill.  United  States  Attorney. 

H.  B.,  Foreman. 

(i)  Taken  from  the  record  in  U.  S.  vs.  Jacob  Warren,  and  sustained 
by  the  District  Court  of  the  United  States  for  the  Southern  District 
of  Ohio. 


No.  488. 

Demanding  Illegal  Fees  of  Pensioner  in  Violation  of  Re- 
vised Statutes,  Section  5485,  as  amended  July  4,  1884  (i). 

The  United  States  of  America,  ^    

District  of ,  ss. 

In  the  District  Court  of  the  United  States,  within  and  for  the 

District  of ,  in  the Judicial  Circuit  of  the 

Term  of ,  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and . 

The  grand  jurors  of  the  United  States  of  America,  duly 
empaneled,  sworn,  and  charged  to  inquire  within  and  for  the 


464  CRIMINAL   PROCEEDINGS. 

said  district,  upon  their  oaths  and  affirmations,  present  that 

L.  H.,  on,  to  wit,  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of , 

in  the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  being  then  and  there  a 
person  instrumental  in  prosecuting  a  claim  for  pension  of  one 
R.  L.  from  the  United  States,  did  then  and  there  unlawfully 
and  knowingly  demand  from  the  said  R.  L.  as  and  for  his, 
the  said  L.  H.,  compensation  for  his  services  and  instrumen- 
tality in  prosecuting  said  claim  for  a  pension  from  the  United 
States,  a  sum  of  money  greater  than  and  exceeding  the 
amount  provided  and  allowed  therefor  by  law,  to  wit,  a  sum 
of  money  greater  than  and  exceeding  the  sum  of  ten  dollars, 
the  amount  of  compensation  then  and  there  provided  and 
allowed  by  law  therefor,  there  being  then  and  there  no  agree- 
ment of  the  said  R.  L.  with  the  said  L.  H.  filed  with  the 
commissioner  of  pensions  touching  and  concerning  the  fees 
of  the  said  h.  H.  in  said  claim,  to  wit,  the  sum  of  twenty-five 
dollars,  the  demand  then  and  there  by  him,  the  said  L.  H.,  as 
aforesaid,  of  the  said  sum  of  twenty-five  dollars  as  aforesaid, 
being  then  and  there  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  United  States  of  America.  J.  H., 

United  States  Attorney. 
A  true  bill. 

H.  B.,  Foreman. 

(i)  Taken  from  the  record  of  the  U.  S.  z's.  1. 1.  Mitchell, and  sustained 
in  the  District  Court  of  the  United  States  for  the  Southern  District  of 
Ohio. 


INDICTMENTS   IN   SPECIAL   CASES.  465 

No.  489. 

Forgery — Violation  of  R.  S.,  Sections  5414,  5421  and 

5431  (I)- 

The  United  States  of  America,  , ,. 

^.      .        r  No. . 

District  of ,  ss. 

In  the  District  Court  of  the  United  States,  within  and  for 

the District  of ,  in  the Judicial  Circuit,  of 

the  Term  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and . 

The  grand  jurors  of  the  United  States  of  America  duly- 
empaneled,  sworn,  and  charged  to  inquire  within  and  for  the 
said  district,  upon  their  oaths  and  affirmations,  present  that 

L.  H.,  on,  to  wit,  the day  of ,  in  the  year  of  our 

Lord    one    thousand    eight    hundred    and    ,    in    the 

county  of ,  in  the  state  of ,  in  the  circuit  and  dis- 
trict aforesaid,  and  within  the  jurisdiction  of  this  court,  did 
then  and  there  unlawfully,  feloniously,  and  falsely  make  and 
forge  a  certain  obligation  of  theUnited  States,  to  wit:  a  draft 
for  money,  to  wit :  the  sum  of  ninety-four  dollars,  drawn  by 
an  authorized  officer  of  the  United  States,  to  wit :  D.  L.,  major 
and  paymaster  of  the  United  States  army,  upon  the  assistant 
treasurer  of  the  United  States  at  New  York,  and  which  said 
and  falsely-made  and  forged  obligation  of  the  United  States 
is  in  the  words  and  figures  following:  \_kere  set  forth  in  full 
the  forged  instrument]^  and  on  the  back  of  which  said  falsely- 
made  obligation  of  the  United  States  as  aforesaid,  were  en- 
dorsed the  words  and  figures  following,  to  wit :  [here  set 
forth  in  full  the  endorsement]. 

And  the  grand  jurors  aforesaid,  upon  their  oaths  and  affir- 
mations aforesaid,  do  further  present  that  the  said  L.  H.  did 
then  and  there  falsely  make  and  forge  the  said  obligation  of 
the  United  States  in  this,  to  wit:  that  the  said  L.  H.  did  then 
and  there  falsely  make  and  forge  the  name  of  the  payee,  to 
wit:  the  words  W.  B.,  with  intent  then,  and  there,  and 
thereby  to  defraud,  contrary  to  the  form  of  the  statute  in  such 


466  CRIMINAL    PROCEEDINGS. 

case  made  and  provided,  and  against  the  peace  and  dignity 
of  the  United  States  of  America,  J.  H., 

United  States  Attorney. 
A  true  bill. 

H.  B.,  Foreman. 

(i)  Taken  from  the  record  of  the  U.  S.  vs.  Adrian  I.  Jones,  and  sus- 
tained in  the  District  Court  of  the  United  States  for  the  Southern 
District  of  Ohio. 


No.  490. 

Forging  Endorsement  upon  Money  Order  (i)  (R.  S., 
Sec.  5463,  as  amended  June  i8th,  1888). 

The  United  States  of  America,  t., 

■No. . 

District  of ,  ss. 

In  the  District  Court  of  the  United  States,  within  and  for  the 

District  of ,  in  the Judicial  Circuit,  of  the 

Term  of ,  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and . 

The  grand  jurors  of  the  United  States  of  America,  duly 
empaneled,  sworn,  and  charged  to  inquire  within  and  for  the 
said  district,  upon  their  oaths  and  affirmations,  present  that, 

L.  H.,  on,  to  wit,  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of , 

in  the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  did,  with  intent  to  de- 
fraud, falsely  forge  and  counterfeit  a  material  signature  and 
endorsement  upon  a  certain  money-order,  issued  under  the 
direction  of  the  post-office  department  of  the  United  States, 

to  wit,  by  the   postmaster   at   ,    ,  and  which  said 

money-order  was  payable  in  the  United  States  at , , 

to  one  T.  H.,  and  which  said  money-order,  with  its  forged  and 
counterfeit  signature  and  endorsement,  is  in  the  following 
words  and  figures  to  wit :  \Jiere  set  forth  in  full  the  order]. 

He,  the  said  L.  H.,  intending  then,  and  there,  and  thereby 
to  defraud,  contrary  to  the  form  of  the  statute  in  such  case 


INDICTMENTS   IN    SPECIAL   CASES.  467 

made  and  provided,  and  against  the  peace  and  dignity  of  the 
United  States  of  America.  J.  H., 

United  States  Attorney. 
A  true  bill. 

H.  B.,  Foreman. 

(i)  Taken  from  the  record  of  the  U.  S.  vs.  Daniel  Hogan,  and  sus- 
tained in  the  District  Court  of  the  United  States  for  the  Southern  Dis- 
trict of  Ohio. 


No.  491. 

Indictment  for  Perjury  (i)  (R.  S.,  Sec.  5392). 

The  United  States  of  America,  xt 

r  No.  . 

District  of ,  ss. 

In  the  Circuit  Court  of  the  United  States,  within  and  for  the 

District   of ,  in  the Judicial  Circuit,  of 

the  Term  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and . 

The  grand  jurors  of  the  United  States  of  America,  duly 
empaneled,  sworn,  and  charged  to  inquire  within  and  for  the 
said  district,  upon  their  oaths  and  affirmations,  present  that 

L.  H.,  on,  to  wit,  the day  of ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and ,  in  the  county 

of ,  in  the  state  of ,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  being  then 
clerk  of  the  circuit  and  district  courts  of  the  United  States 

for  the district  of ,  did  then  and  there  appear  in  his 

own  proper  person   before  J.   S.,    the  judge  of  the  district 

court  of  the  United  States  for  the district  of ,  and 

did  take  an  oath  before  said  judge  that  a  certain  written  declara- 
tion by  him  subscribed  was  true,  which  said  declaration  was 
of  the  tenor  and  effect  following,  to  wit,  \set  forth  the  decla- 
ration in  full\. 

And  so  the  grand  jurors  aforesaid,  on  their  oaths  and 
affirmations  aforesaid,  present  that  he,  the  said  L.  H.,  hav- 
ing taken  the  said  oath  before    the    said  officer,  who  was 


468  CRIMINAL   PROCEEDINGS. 

competent  to  administer  the  same,  that  said  within  declar- 
ation by  him  so  subscribed,  as  aforesaid,  was  true,  willfully 
and  contrary  to  said  oath  did  then  and  there  unlawfully 
subscribe  said  matters  heretofore  set  forth,  which  were  mate- 
rial, and  which  he  did  not  believe  to  be  true,  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  United  States  of 
America. 

Second.     And  the  grand  jurors  aforesaid,  upon  their  oaths 
and    affirmations  aforesaid,   do  further  present  that  L.  H., 

on,   to   wit,  the day  of ,  in   the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  in  the  county  of , 

in  the  state  of ,  in  the  circuit  and  district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  being  the  clerk  of  the 

circuit  and  district  courts  of  the  United  States  for  the 

district  of ,  did  then  and  there  make  a  written  return  to 

the  attorney  general  of  the  United  States,  in  the  form  pre- 
scribed by  him,  for  the  half  year  ending  on  the day  of 

,  thereto  preceding,  of  all  the  fees  and  emoluments  of 

his  said  office  of  every  name  and  character,  and  of  all  the 
necessary  expenses  of  his  office  for  such  last  half  year,  and 
did  then  and  there  appear  in  his  own  proper  person  before 
J.  S.,  the  judge  of  the  district  court  of  the  United  States 

for  the district  of ,  and  did  take  and  subscribe  an 

oath  before  the  said  judge,  who  had  competent  authority  to 
administer  the  same,  of  the  tenor  and  effect  following,  to 
wit,  \set  forth  the  return  infull\^  which  said  return  so  sworn 
to  by  the  said  L.  H.,  as  aforesaid,  contained  among  other 
things  the  following  account  of  his  fees  and  emoluments  as 
clerk  of  said  courts  during  the  said  half  of  the  year,  to  wit, 
[set  forth  account  in  full'\\  when  in  truth  and  in  fact  the 
said  account  was  not  in  all  respects  just  and  true  accord- 
ing to  his  best  knowledge  and  belief,  and  in  truth  and  in 
fact  he  had  received  directly  and  indirectly  other  money  than 

therein  stated,  to    wit,    more  than dollars  as  fees  and 

emoluments  earned  from  individuals   in  the  district   court, 


INDICTMENTS   IN   SPECIAL   CASES.  469 

more    than   dollars  as    fees  and  emoluments    earned 

from  individuals  in  cases  in  bankruptcy  in  the  district  court, 

and  more  than dollars  as  fees  and  emoluments  earned 

from  individuals  in  the  circuit  court ;  and  in  truth  and  in  fact 
he  was  entitled  to  emoluments  for  the  period  therein  men- 
tioned other  than  those  therein  specified,  to  wit,  more  than 
dollars  as  fees  and  emoluments  earned  from  individ- 
uals in  the  district  court,  a  large  amount  earned  from  indi- 
viduals in  cases  in  bankruptcy  in  the  district  court,  and  more 
than dollars  as  fees  and  emoluments  earned  from  indi- 
viduals in  the  circuit  court ;  and  in  truth  and  in  fact  the 
total   gross  emoluments   earned    by  him    during   the    said 

period  were  more  than dollars,  all  of  which  he,  the  said 

L.  H.,  then  and  there  well  knew. 

And  so  the  grand  jurors  aforesaid,  upon  their  oaths  and 
affirmations  aforesaid,  present  that  the  said  L.  H,,  having 
taken  the  said  oath  before  said  ofl&cer,  who  was  competent 
to  administer  the  same,  that  said  written  declaration  by  him 
so  subscribed  as  aforesaid  was  true,  willfully  and  contrary  to 
said  oath,  did  then  and  there  unlawfully  subscribe  said  mat- 
ters hereinbefore  set  forth,  which  were  material,  and  which 
he  did  not  believe  to  be  true,  contrary'  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the 
peace  any  dignity  of  the  United  States  of  America. 

Third.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
and  afiirmations  aforesaid,  do  further  present  that  L.  H.,  on, 

to  wit,  the day  of ,  in  the  year  of   our    Lord  one 

thousand  eight  hundred  and ,  in  the  county  of ,  in 

the  state  of ,  in  the  circuit    and   district  aforesaid,  and 

within  the  jurisdiction  of  this  court,  being  the  clerk  of  the 

circuit  and  district  courts  of  the  United  States  for  the 

district  of ,  did  then  and  there  make  a  written  return  to 

the  attorney  general  of  the  United  States,  in  the  form  pre- 
scribed by  him  for  the  half  year  ending  on  the day  of 

,  heretofore  preceding,  of  all  the  fees  and  emoluments 

of  his  said  office  of  every  name  and  character,  and  of  all  the 


470  CRIMINAL    PROCEEDINGS. 

necessary  expenses  of  his  office  for  such  last  half  year,  and 
did  then  and  there  appear  in  his  own  proper  person  before  J. 
S.,  the  judge   of  the  district  court  of  the  United  States,  for 

the district    of ,  and  did  take    and   subscribe    an 

oath  before  said  judge,  who  had  competent  authority  to  ad- 
minister the  same,  of  the  tenor  and  effect  following,  to  wit, 
[sel  forth  oath  mfull'\^  which  said  written  return  so  sworn 
to  by  the  said  L.  H.,  as  aforesaid,  contained  the  following 
account  of  his  fees  and  emoluments  as  clerk  of  said  courts 
during  the  said  half  year,  to  wit,  [here  set  forth  the  account 
infull\  when  in  truth  and  in  fact,  the  said  account  was  not 
in  all  respects  just  and  true  according  to  his  best  knowledge 
and  belief,  and  in  truth  and  in  fact,  he  had  received  directly 
and  indirectly,  other  money  than   as  therein  stated,  to   wit^ 

more  than dollars  as  fees  and  emoluments  earned  from 

individuals  in  the  district  court,  more  than dollars  as 

fees  and   emoluments   earned   from  individuals  in   cases  of 

bankruptcy,  and   more  than dollars  as  fees  and  emolu- 

anents  earned  from  individuals  in  the  circuit  court ;  and  in 
truth  and  in  fact,  he  was  entitled  to  emoluments  for  the 
period  therein  mentioned  other  than  those  therein  specified, 

to  wit,  more  than dollars  as  fees  and  emoluments  earned 

from  individuals  in  the  district  court,  a  large  amount  earned 
from  individuals  as  fees  and  emoluments  in  cases  of  bank- 
ruptcy in  the   district   court,  and  more  than dollars  as 

fees  and  emoluments  earned  from  individuals  in  the  circuit 
court ;  and  in  truth  and  in  fact,  the   total  gross  emoluments 

earned  by  him  during  the  said  period  were   more  than 

dollars,  all  of  which  he,  the  said  L.  H.,  then  and  there  well 
knew,  and  so  the  grand  jurors  aforesaid,  on  their  oaths  and 
affirmations  aforesaid,  present  that  the  said  L.  H.,  having 
taken  the  said  oath  before  the  said  officer,  who  was  compe- 
tent to  administer  the  same,  that  the  said  written  declara- 
tion by  him  so  subscribed  as  aforesaid  was  true,  willfully  and 
contrary  to  said  oath,  did  then  and  there  unlawfully  sub- 
scribe said  matters  hereinbefore  set  forth,  which  were  mate- 


INDICTMENTS    IN   SPECIAL    CASES.  47 1 

rial,  and  which  he  did  not  believe  to  be  true,  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  United  States  of 
America. 

Fourth.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
and  affirmations  aforesaid,  do  further  present  that  L.  H.,  on, 

to  wit,  the day  of  ,  in  the   county  of ,  in  the 

state  of ,  in  the  circuit  and  district  aforesaid,  and  within 

the  jurisdiction  of  this  court,  being  the  clerk  of  the  circuit 

and  district  courts  of  the  United  States  for  the district 

of ,  and  having  made  in  writing  an  account  against  the 

government  of  the  United  States  for  service  performed  by 
him  as  clerk  of  said  courts  during  the  last  half  of  the  year 

eighteen  hundred  and  ,   did  then   appear  in  his  own 

proper  person  before  J.  S.,  the  judge  of  the  district  court  of 

the  United  States  for  the district  of ,  and  take  and 

subscribe  an  oath  before  said  judge,  who  had  competent 
authority  to  administer  the  same,  of  the  tenor  and  eflfect  fol- 
lowing, to  wit : 

Iv.  H.,  being  duly  sworn,  says  that  the  services  charged  in 
the  foregoing  account  have  been  actually  and  necessarily 
performed  as  therein  stated,  which  said  account,  with  the 
aforesaid  oath  attached  thereto,  was  thereupon  presented  to 

the  circuit  court  of  the  United  States  for  the district  of 

,  and  said  account  was,  by  said  oath  thereto  attached, 

proved  to  the  satisfaction  of  the  court;  and  the  said  court 
thereupon  caused  to  be  entered  of  record  an  order  approving 
the  said  account,  and  the  said  account  so  approved  was  for- 
warded to  the  proper  accounting  officer  of  the  treasury,  to 
wit,  the  first  auditor  of  the  treasury,  which  said  account, 
so  sworn  to  by  the  said  L.  H.  as  aforesaid,  including  services 
for  recording  the  proceedings  of  the  circuit  court  pf  the 
United  States  in  certain  cases  theretofore  pending  therein, 
wherein  the  United  States  was  a  party,  to  wit  \set  forth  the 
na7nes  of  all  the  cases\  ,  when,  in  truth  and  in  fact,  the  said 
services  had  not  been  actually  performed,  the  proceedings  of 


472  CRIMINAL    PROCEEDINGS. 

the  circuit  court  in  said  cases  not  having  been  recorded,  as 
the  said  L.  H.  then  and  there  well  knew. 

And  so  the  grand  jurors  aforesaid,  upon  their  oaths  and 
affirmations  aforesaid,  present  that  the  said  L.  H.,  having 
taken  the  said  oath  before  the  said  officer,  who  was  compe- 
tent to  administer  the  same,  that  said  written  certificate  by 
him  so  subscribed  as  aforesaid  was  true,  willfully,  and  con- 
trary to  said  oath,  did  then  and  there  unlawfully  subscribe 
said  matters  hereintofore  set  forth,  which  were  material,  and 
which  he  did  not  believe  to  be  true,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  United  States  of  America. 

J.  H., 

A  true  bill.  United  States  Attorney. 

H.  B.,  Foreman. 

(i)  Taken  from  the  record  in  the  U.  S.  vs.  Thomas  Ambrose.  See 
U.  S.  vs.  Ambrose,  io8  U.  S.,  336. 


No.  492. 

Making  Counterfeit  Coin  (i)  (Act  of  July  10,  1891). 

The  United  States  of  America,  ^.y 

^.      .        r  No. . 

District  of ,  ss. 

In  the  District  Court  of  the  United  States,  within  and  for 

the District  of ,  in  tha Judicial  Circuit, 

of  the  Term  of ,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and . 

Ftrsl  Count.  The  grand  jurors  of  the  United  States  of 
America,  duly  empaneled,  sworn,  and  charged  to  inquire 
within  and  for  the  said  district,  upon  their  oaths  and  affirma- 
tions, present  that  L.  H.,  on,  to  wit,  the  day  of ,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and ,  in 

the  county  of ,  in  the  state  of ,  in  the  circuit  and 

district  aforesaid,  and  within  the  jurisdiction  of  this  court, 
did  then  and  there  unlawfully,  knowingly,  and  feloniously 


INDICTMENTS   IN   SPECIAL   CASES.  473 

have  in  his  possession,  without  authority  from  the  secretary 
of  the  treasury  of  the  United  States,  or  other  proper  officer, 
certain,  to  wit,  six  moulds  of  plaster  and  other  substance  in 
likeness  and  similitude  as  to  the  design  and  inscription  upon 
said  moulds  of  the  design  and  inscription  upon  the  dies, 
hubs,  and  moulds  designated  for  the  coining  and  making  of 
the  genuine  silver  and  nickle  coin,  to  wit,  quarter  dollars, 
dimes,  and  five-cent  pieces  of  the  United  States  that  have 
been  coined  at  the  mints  of  the  United  States,  with  intent 
then  and  there  to  fraudulently  and  unlawfully  use  the  same 
in  molding  and  coining  counterfeit  quarter  dollars,  dimes, 
and  five-cent  pieces  in  the  similitude  of  the  silver  quarter 
dollars,  dimes,  and  nickle  and  copper  five-cent  coins  coined 
at  the  mints  of  the  United  States,  with  intent  then,  there, 
and  thereby  to  defraud,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  and  dig- 
nity of  the  United  States  of  America. 

Second  Count.  And  the  grand  jurors  aforesaid,  upon  their 
oaths  afid  affirmations  aforesaid,  do  further  present  that  the 

said  L.  H.,  on,  to  wit,  the day  of ,  in  the  year  of 

our   Lord    one   thousand   eight   hundred    and  ,  in   the 

county  of ,  in  the  state  of ,  in  the  circuit  and  dis- 
trict aforesaid,  and  within  the  jurisdiction  of  this  court,  did 
then  and  there  unlawfully,  knowingly,  feloniously,  and  falsely 
make  and  forge  a  large  number,  to  wit,  twenty  false-forged 
and  counterfeit  coins  in  the  likeness  and  similitude  of  the 
true  and  genuine  silver  quarter  dollars  and  dimes  coined  at 
the  mints  of  the  United  States,  with  intent  to  utter  the  same 
as  true  and  genuine,  and  with  intent  then,  and  there,  and 
thereby  to  defraud,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  and  dig- 
nity of  the  United  States  of  America.  J.  H., 

A  true  bill.  United  States  Attorney. 

H.  B,,  Foreman. 

(i)  Taken  from  the  record  in  U.  S.  vs.  Richard  Reeve,  and  sustained 
in  the  District  Court  of  the  United  States  for  the  Southern  District 
of  Ohio. 


474  CRIMINAL    PROCEEDINGS. 

No.  493. 

Passing  Counterfeit  Money  (i)  (R.  S.  Sec.  5431). 

The  United  States  of  America,  ^    

District  of ,  ss. 

In  the  Circuit  Court  of  the  United  States,  within  and  for  the 

District  of ,  in  the Judicial  Circuit,  of  the 

Term  of ,  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and , 

The  grand  jurors  of  the  United  States  of  America,  duly 
empaneled,  sworn,  and  charged  to  inquire  within  and  for  the 
said  district,  upon  their  oaths  and  affirmations,  present  that 

L.  H.,  alias  N.  B.,  on,  to  wit,  the  — •—  day  of ,  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and ,  in  the 

county  of ,  in  the  state  of ,  in  the  circuit  and  district 

aforesaid,  and  within  the  jurisdiction  of  this  court,  did  then 
and  there  unlawfully,  knowingly,  and  feloniously  utter,  pub- 
lish, and  pass  upon  H.  H.  a  false,  forged,  and  counterfeit 
obligation  of  the  United  States,  to  wit,  an  United  States 
treasury  note  of  the  denomination  of  five  dollars,  in  the 
resemblance  and  similitude  of  the  true  and  genuine  obliga- 
tions of  the  United  States,  to  wit.  United  States  treasury  notes 
of  the  denomination  and  value  of  five  dollars,  and  which  said 
false,  forged,  and  counterfeit  obligation  of  the  United  States 
is  of  the  following  tenor  and  effect,  that  is  to  say  [here  set 
forth  in  full  copy  ofnote\  and  upon  which  said  false,  forged, 
and  counterfeit  obligation  of  the  United  States  were  endorsed 
the  words  and  figures  following,  to  wit  [set  forth  endorsement 
in  fuU\  he,  the  said  L.  H.,  alias  N.  B.,  then  and  there  well 
knowing  the  same  to  be  false,  forged,  and  counterfeit,  and 
intending  then  and  there  to  defraud,  contrary  to  the  form  of 
the  statue  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  United  States  of  America. 
A  true  bill.  J.  H., 

H.  B,,  Foreman.  United  States  Attorney. 

(i)  Taken  from  the  record  of  the  U.  S.  vs.  Nicholas  Damore,  and 
sustained  in  the  Circuit  Court  of  the  United  States  for  the  Southern. 
District  of  Ohio. 


INDICTMENTS   IN   SPECIAL   CASES.  475 

No.  494. 

Against  a  Retail  Liquor  Dealer   Selling  Liquor — For  not 
Paying  Special  License  Tax. 

The  United  States  of  America, 

District  of ss. 

In  the  District  [or^  Circuit]  Court  of  the  United  States,  within , 

and  for  the District  of  ,  in  the  Sixth  Judicial 

Circuit,  of  the  Term  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  ninety  . 

The  grand  jurors  of  the  United  States  of  America,  duly 
empaneled,  sworn,  and  charged  to  inquire  within  and  for  the 
said  district,  upon  their  oaths  and  affirmations,  present  that 

*  L.  H.,  of ,  on,  to  wit,  the day  of ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and  ninety ,  in 

the  county  of ,  in  the  state  of  Ohio,  in  the  circuit  and 

district  aforesaid,  and  within  the  jurisdiction  of  this  court, 
did  then  and  there  unlawfully  carry  on  the  business  of  a  re- 
tail liquor  dealer  without  having  paid  the  special  tax  of 
twenty-five  dollars  as  required  by  law,  and  the  said  L.  H^ 
did  then  and  there  ojQfer  for  sale  and  sell  to  J.  B.  and  to  vari- 
various  other  persons  whose  names  are  to  the  said  grand  jury 
unknown,  foreign  and  domestic  distilled  spirits,  wines,  and 
malt  liquors,  otherwise  than  as  provided  by  law,  in  less 
quantities  than  five  gallons  at  the  same  time,  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  United  States  of 
America.  J-  H., 

United  States  Attorney. 
A  true  bill, 

H.  B.,  Foreman. 


No.  495. 

Petition  for   Removal   of  Criminal   Case   from  the  State 
Court  to  United  States   Court. 

For  form  see  under  title  "  Removal  from  State  Courts." 


476  CRIMINAL   PROCEEDINGS. 

No.  496. 

Criminal  Information. 

The  United  States  of  America, 

District  of . 

At  the  term  of  the  United  States  district  court  for 

the district  of ,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and ,  leave  of  the  court  being  first 

had  and  obtained,  comes  J.  H.,  attorney  for  the  United  States 
for  said  district,  and  informs  the  court  that,  as  appears  from 
a  complaint  made  under  oath  and  transcript  of  proceedings 
held  before  J.  N.,  a  Commissioner  for  the  circuit  court  of  the 

United  States  for  the district  of ,  and  on  file  in 

this  court,  and  who,  after  examination  of  the  charge,  found 
that  there  was  probable  cause  to  hold  the  defendant  to  bail, 

that  one  h.  H.,  on  the day  of ,  A.  D,  1894,  at , 

in  said  district,  did  then  and  there  unlawfully  retain  the  cer- 
tificate of  a  pensioner  of  the  United  States,  to  wit,  one  J.  M., 
issued  to  him  and  his  name,  and  refused  to  surrender  the  same 
upon  the  demand  of  the  pensioner,  J.  M.  contrary  to  the 
form  of  an  act  of  Congress  approved  February  28,  1883,  in 
such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  United  States  of  America. 

J.  H, 
United  States  Attorney. 


No.  497. 

Information.     Seizure  under  the  Revenue  Laws. 
(General  Form.) 

The  District  Court  of  the  United  States, 

for  the District  of . 

Before  the  Honorable  G.  W.,  Judge. 

On  the day  of ,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and ,  comes  J.  H,,  as  attorney  of  the 

United  States  for  the  said  district  of ,  in  a  cause 


INDICTMENTS   IN   SPECIAL   CASES.  477 

of  seizure  on  land  \or  as  may  be\  under  the  revenue  laws  of 
the  United  States,  and  informs  the  court; 

That  on  the day  of ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and ,  A.  B.,  collector  of  the  cus- 
toms for  the  port  and  collection  district  of ,  seized  on 

land  [<7r,  vessel,  or  as  may  be\  within  the  said  district,  the 
property  described  as  follows :  [here  set  forth  the  place  of  seiz- 
ure and  a  list  of  the  articles  seized\  the  property  above  men- 
tioned, said  to  belong  to  C.  D.,  and  now  the  said  A.  B,  has 
the  same  in  custody  within  the  district  of afore- 
said, as  forfeited  to  the  United  States  for  the  following 
causes: 

\Here  state  the  several  grounds  of  forfeiture  in  separate  ar- 
ticles and  proceed^ 

And  the  said  attorney  of  the  United  States,  on  behalf  of 
the  United  States,  says  that  all  and  singular  the  premises 
are  true,  and  that  by  reason  thereof,  and  by  force  of  the 
statute  in  such  case  made  and  provided,  the  aforementioned 
property,  goods,  wares,  and  merchandise,  as  hereinbefore  par- 
ticularly specified,  became  and  are  forfeited  to  the  United 
States  as  in  said  statute  provided. 

Wherefore  he  prays  that  the  usual  process  and  monition 
of  this  honorable  court  issue  in  this  behalf;  and  that  all 
persons  interested  in  the  said  property,  goods,  wares,  and 
merchandise,  etc.,  may  be  cited  and  admonished  in  general 
and  special  to  answer  the  premises;  and,  all  due  proceed- 
ings being  had  thereon,  that,  for  the  causes  aforesaid,  and 
others  appearing,  the  said  property,  goods,  wares,  and  mer- 
chandise, etc.,  as  before  set  forth,  be  condemned  by  the  defi- 
nite sentence  and  decree  of  this  honorable  court  as  forfeited 
to  the  use  of  the  United  States,  according  to  the  form  of  the 
statutes  of  the  United  States  in  such  case  made  and  pro- 
vided. J.  H., 

United  States  Attorney  for  the 
district  of . 


478  CRIMINAL    PROCEEDINGS. 

No.  498. 

Information — Admiralty. 

For  form  of  Libel  of  Information,  see  form  under  title 
*' Admiralty." 


No.  499. 
Libel  of  Information — Seizure  of  a  Distillery  (i). 

The  United  States  of  America,  xt 

District  of ,  ss. 

In  the  District  Court  of  the  United  States  within  and  for  the 
District  of ,  of  the  Term  of ,  i8 — . 

The  information  of  J.  H.,  United  States  Attorney  within 
and  for  the district  of ,  who  prosecutes  in  this  be- 
half for  the  said  United  States,  and  being  present  here  in 
court  in  his  own  proper  person,  doth  disclose  and  make 
known  to  the  court ; 

That  W.  T.,  Esquire,  deputy  collector  of  internal  revenue 

for  the  first  collection  district  of  the  state  of ,  heretofore,  • 

to  wit,  on  the day  of ,  i8 — ,  on  land,  at ,  county 

■of ,  and  state  of ,  and  within  said district  of 

,  seized  the  following  described  property  for  a  forfeiture 

incurred  under  the  laws  of  the  United  States,  that  is  to  say, 
one  two-story  stone  and  brick  building,  6o  by  40  feet,  used 
as  a  distillery;  a  one-story  frame  building,  43  by  23  feet, 
used  as  a  cistern  and  drawing-ofF  rooms  ;  a  one-story  frame 
building,  15  by  30  feet,  used  as  a  warehouse ;  also,  all  that 

certain  lot  of  ground  situated  in  the  city  of ,  county  of 

,  and  state  of ,  in  S.  W.'s  subdivision,  recorded  in 

plat  book  No. ,  page  , county  records,  being 

part  of  section ,  township ,  fractional  range ,  of 

the purchase,  commencing  at  a  point,  etc.  [set  forth  de- 
scription in  fuU\  and  also  the  following  \here  state  in  full 
contents  of  the  buildings  and  property  seize d\  and  now  has 
the  same  in  custody  within  said district  of ,  as  for- 
feited for  the  following  causes : 


INDICTMENTS    IN   SPECIAL   CASES.  479 

That  prior  to  said  seizure  taxes  were  imposed  by  the  pro- 
vision of  law  upon  the  said  distilled  spirits,  and  the  same 
being  so  subject  to  the  payment  of  taxes  as  aforesaid,  were 
found  by  the  said  W.  T.,  deputy  collector,  in  the  possession 
and  custody  and  with  the  control  of  some  person  or  persons 
to  said  attorney  unknown,  for  the  purpose  of  being  sold 
and  removed  by  such  person  or  persons  in  fraud  of  the  in- 
ternal revenue  law,  and  with  design  to  avoid  payment  of 
said  taxes  against  Section  3453  of  the  Revised  Statutes  of 
the  United  States. 

Second.  That  the  said  corn,  rye,  etc.,  then  and  there  be- 
ing articles  of  raw  material,  were  found  in  the  possession  of 
some  person  or  persons  to  the  said  attorney  unknown,  the 
said  person  or  persons  then  and  there  intending  to  manu- 
facture the  same  into  articles  of  a  kind  subject  to  tax,  for 
the  purpose  of  fraudulently  selling  such  manufactured  arti- 
cle, and  with  design  to  evade  the  payment  of  said  taxes, 
against  the  aforementioned  Section  3453  of  the  Revised  Stat- 
utes of  the  United  States. 

Third.  That  said  tools,  implements,  instruments,  and 
personal  property  were  found  in  the  place,  or  building,  and 
within  certain  yards  and  enclosures  where  said  distilled 
spirits  and  said  raw  material  were  found  as  aforesaid,  where- 
by they  became  liable  to  forfeiture  by  the  provisions  of  the 
aforementioned  Section  3453  of  the  Revised  Statutes  of  the 
United  States. 

Fourth.  That  prior  to  said  seizure,  tax  was  imposed  on 
said  goods  and  commodities,  consisting  of  distilled  spirits, 
and  said  material,  and  utensils,  and  vessels,  then  and  there 
being  materials,  utensils,  and  vessels  proper,  and  intended 
to  be  made  use  of  for  and  in  the  making  of  such  goods 
and  commodities  taxed  as  aforesaid,  were  removed,  and 
were  deposited  and  concealed  with  intent  to  defraud  the 
United  States  of  such  tax,  or  some  part  thereof,  against  Sec- 
tion 3450  of  the  Revised  Statutes  of  the  United  States  afore- 
said. 


480  CRIMINAL    PROCEEDINGS. 

Fifth.  That  the  carts,  wagons,  and  conveyances  and  said 
horses  and  other  animals  were  used  in  the  removal  and  for 
the  deposit  and  concealment  of  said  goods  and  commodities 
consisting  of  distilled  spirits,  said  goods  and  commodities 
then  and  there  being  forfeited  to  the  United  States,  against 
the  Section  3450  aforementioned. 

Sixth.  The  said  distilled  spirits  and  wines,  and  said  stills 
and  other  apparatus,  the  still  and  other  apparatus  then  and 
there  being  fit  and  intended  to  be  used  for  the  distillation  of 
spirits  within  the  meaning  of  the  internal  revenue  laws,  were 
owned  by  some  person  or  persons  to  said  attorney  unknown, 
who  engaged  in  and  carried  on  the  business  of  a  distiller  with 
intent  to  defraud  the  United  States  of  the  tax  on  the  spirits 
distilled  by  such  person  or  persons,  against  Section  3281  of 
the  Revised  Statutes  of  the  United  States  aforesaid. 

Seventh.  That  the  said  distilled  spirits,  wines,  and  per- 
sonal property  were  found  in  a  certain  distillery  and  in  a 
certain  building,  room,  yard,  and  enclosure  connected  there- 
with and  used  with  and  constituting  a  part  of  the  prem- 
ises, and  that  some  person  or  persons  to  the  said  attorney 
unknown,  did,  in  said  distillery,  carry  on  then  and  there  the 
business  of  a  distiller,  with  intent  to  defraud  the  United  States 
of  the  tax  on  the  spirits  distilled  by  said  person  or  persons, 
against  Section  3281  of  the  Revised  Statutes  of  the  United 
States  aforesaid. 

Eighth.  That  some  person  or  persons  to  the  said  attorney 
unknown,  then  and  there  having  a  certain  right,  title,  and 
interest  in  the  lot  and  tract  of  land  on  which  said  distillery 
was  situate,  did  knowingly  suffer  and  permit  some  person  or 
persons  to  said  attorney  unknown,  to  carry  on  the  business 
of  a  distiller  upon  said  premises,  and  did  connive  at  the  said 
person  or  persons  carrying  on  the  business  with  intent  to 
defraud  the  United  States  of  the  tax  on  the  spirits  distilled 
by  such  person  or  persons,  against  Section  3281  of  the  Revised 
Statutes  of  the  United  States  aforesaid. 

Ninth.  That  said  personal  property  was  owned  by  and 
found  in  the  possession  of  some  person  or  persons  to  said 


INDICTMENTS   IN   SPECIAL   CASES.  48 1 

attorney  unknown  in  a  certain  building,  yard,  and  enclosure, 
which  said  person  or  persons  permitted  and  suffered  the  said 
building,  yard,  and  enclosure  to  be  used  for  the  purpose  of 
ingress  and  egress  to  and  from  said  distillery  situate  as  afore- 
said in aforesaid,  wherein  said  person  or  persons  to  said 

attorney  unknown,  did  carry  on  the  business  of  a  distiller 
with  intent  to  defraud  the  United  States  of  the  tax  on  the 
spirits  distilled  by  such  person  or  persons,  whereby  said  per- 
sonal property,  and  the  right,  title,  and  interest  of  said  person 
or  persons  so  permitting  and  suffering  said  premises  to  be 
used  as  aforesaid,  became  forfeited  to  the  United  States 
under  and  by  virtue  of  the  aforementioned  Section  3281  of 
the  Revised  Statutes  of  the  United  States. 

Tenth.  That  some  person  or  persons  to  said  attorney 
unknown,  being  engaged  in  carrying  on  the  business  of  a 
distiller  at  the  said  distillery  where  said  still  and  other  appa- 
ratus were  situated,  did  defraud  and  attempt  to  defraud  the 
United  States  of  the  tax  on  the  spirits  distilled  by  him  and 
them,  and  that  the  said  distillery  and  distilling  apparatus 
were  used  by  him  and  them,  and  said  distilled  spirits  and  raw 
material  for  the  production  of  distilled  spirits,  were  found  in 
said  distillery  and  on  the  distillery  premises  against  Section 
3257  of  said  Revised  Statute  of  the  United  States. 

And  the  said  attorney  of  the  United  States,  on  behalf  of  the 
United  States,  saith  that  all  and  singular  the  premises  are 
true,  and  that  by  reasQn  thereof  and  by  force  of  the  statute  in 
such  case  made  and  provided,  the  aforementioned  property, 
goods,  wares,  and  merchandise  as  hereinbefore  set  forth  be- 
came and  are  forfeited  to  the  use  of  the  United  States  as  in 
said  statute  provided. 

Wherefore  he  prays  that  the  usual  process  and  monition  of 
this  honorable  court  issue  in  this  behalf,  and  that  all  persons 
interested  in  said  property,  real  estate,  goods,  wares,  etc.,  may 
be  cited  and  admonished  in  general  and  special  to  answer  the 
premises,  and  that  all  due  proceedings  being  had  thereon, 
that  for  the  causes  aforesaid  and  others  appearing,  that  said 


482  CRIMINAL    PROCEEDINGS. 

property,  real  estate,  goods,  wares,  etc.,  before  set  forth,  be 
condemned  by  the  definite  sentence  and  decree  of  this  hon- 
orable court  as  forfeited  to  the  use  of  the  United  States, 
according  to  the  form  of  the  statute  of  the  United  States  in 
such  case  made  and  provided.  J.  H., 

United  States  Attorney. 

(i)  Taken  from  the  record  of  the  U.  S.  vs.  One  Distiller  and  other 
property,  and  sustained  in  the  District  Court  of  the  United  States  for 
the  Southern  District  of  Ohio. 


PROCEEDINGS   AFTER   INDICTMENT.  483 


PROCEEDINGS  AFTER  INDICTMENT. 

No.  500. 

Capias  ad  Respondendum. 

"The  United  States  of  America, 

District  of ,  ss. 

^he  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the District  of ,  Greeting: 

We  command  you  to  take  L.  H.,  if  he  may  be  found  in 
your  bailiwick,  and  him  safely  keep,  so  that  you  have  his 
body  before  the  judges  of  the  district,  [or,  circuit]  court  of 

the  United  States  for  the district  of ,  at  the  city  of 

,  in  said  district,  forthwith  to  answer  unto  the  United 

States  of  America  on  an  indictment  for  violation  of  Section 

of  the  Revised  Statutes  of  the  United  States,  presented 

to  said  court  against  him,  the  said  L.  H.,  on  the day  of 

,  1894,  by  the  grand  jury  of  the  United  States  within 

and  for  the district  of . 


Hereof  fail  not  under  the  penalty  of  the  law,  and  have  then 
and  there  this  writ. 

lAdd  teste  according  to  the  court  issuing  the  writ.  See  Nos. 
2pandi\?^ 

No.  501. 

Recognizance  for  Appearance  before  the  Court. 

The  United  States  of  America, 

District  of ,  ss. 

Be  it  remembered,  that  on  this day  of ,  1894,  be- 
fore me,  B.  R.,  clerk  of  the  district  [<?r,  circuit]  court  of  the 
United  States  within  and  for  the  district  aforesaid,  duly  ap- 
pointed as  such  by  the  said  court,  personally  came  L.  H.,  as 


484  CRIMINAL  PROCEEDINGS. 

principal,  and  B.  L.  and  J.  P.,  as  sureties,  and  jointly  and 
severally  acknowledged  themselves  to  owe  the  United  States 

of  America  the  sum  of dollars,  to  be  levied  on  their 

goods  and  chattels,  lands,  and  tenements,  if  default  be  made 
in  the  condition  following,  to  wit : 

The  condition  of  this  recognizance  is  such  that  if  the  said 
"L,.  H.  shall  personally  appear  before  the  district  [or,  circuit] 

court  of  the  United  States  in  and  for  the district  of 

,  at  the  city  of ,  state  of ,  from  day  to  day,  and 

then  and  there  to  answer  unto  an  indictment  pending  therein 

for  violation  of  Section of  the  Revised  Statutes  of  the 

United  States,  and  then  and  there  abide  the  further  order  of 
said  court,  and  not  depart  without  leave  thereof,  then  this 
recognizance  to  be  void ;  otherwise  to  remain  in  full  force 
and  virtue.  L.  H.     [kS^<2/.] 

E.  L.      [Seal.] 
J.  P.       [Seal.] 

Taken  and  acknowledged  before  me  the  day  and  year  as 
above  written.  B.  R., 

[Seal.]  Clerk  of  the  District  [or,  Circuit]  Court 

of  the  United  States  for  the 

District  of . 

[Justification  of  sureties  as  in  No.  36.] 


No.  502. 

Temporary  Mittimus. 

The  United  States  of  America, 
District  of ,  ss. 


The  United  States^  No. . 

2JS  V  • 

y    Vt  (      Indictment  for  [crime  charged]. 

The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the District  of ,  Greeting : 

The  defendant,  L.  H.,  having  been  arrested  on  a  capias  ad 
respondendum  issued  upon  the  prcBcipe  of  the  district  attorney 


PROCEEDINGS   AFTER   INDICTMENT.  485 

for  said  district,  and  having  been  arraigned  at  the  bar  of  the 
district  [or,  circuit]  court  of  the  United  States,  within  and 
for  the  district  aforesaid,  and  said  indictment  read  to  him, 
for  plea  says  that  he  is  not  guilty  as  therein  and  thereby 
charged ;  and  being  required  to  enter  into  a  recognizance  in 

the  sum  of dollars  for  his  appearance  before  said  court, 

from  day  to  day,  with  good  and  sufficient  security,  and  not 
complying  with  the  order  of  the  court,  is  remanded  into  the 

custody  of  the  marshal,  to  be  committed  to  the  jail  of 

county,  in  the  state  of ,  until   the  further  order  of  the 

court  aforesaid. 

[Add  teste  according  to  the  court  issuiug  the  writ.  See 
Nos.  30  and  31.] 

No.  503. 

Motion  to  Quash  Indictment  (i). 

The  United  States  of  America, 

District  of ,  ss. 

The  United  States  |      j^aictment  for  making  a 
j^^^  (  Fraudulent  Claim. 

Now  comes  the  defendant,  L.  H.,  by  his  counsel,  and  moves 
the  court  to  quash  the  first  count  in  the  indictment  herein 
for  the  following  reasons  : 

First.  Said  count  does  not  definitely  state  whether  the 
offense  sought  and  intended  to  be  charged  is  one  for  "making" 
a  false  claim  upon  and  against  the  government,  knowing  the 
same  to  be  false,  or  whether  it  is  for  "causing"  a  false  claim 
to  be  made  upon  and  against  the  government,  or  whether  it 
is  for  "presenting"  a  false  claim  upon  or  against  the  govern- 
ment, or  for  "causing"  to  be  presented  a  false  "claim"  upon 
or  against  the  government. 

Second.  The  said  count  does  not  aver  that  the  defendant 
at  any  time  presented  to  or  asked  for  the  payment,  approval, 
or  allowance  of  said  false  claim  to  or  by  the  government,  or 


486  CRIMINAI.    PROCEEDINGS. 

that  said  false  claim  was  at  any  time  presented  to  or  asked  of 
any  department  or  officer  of  the  government  by  the  defend- 
ant for  payment,  allowance,  or  approval. 

Third.  Said  count  of  said  indictment  is  indefinite,  uncer- 
tain, and  insufficient  in  law  in  that  it  does  not  state  or  specify 
to  what  "vicious  habit"  of  the  defendant  the  alleged  disabil- 
ity of  the  defendant  was  due. 

Said  count  of  said  indictment  is  too  indefinite  and  uncer- 
tain for  the  foregoing  reasons  and  in  the  foregoing  respects 
to  apprise  the  defendant  of  the  nature  of  the  charge  against 
him. 

The  defendant,  by  his  counsel,  also  moves  the  court  to 
quash  the  second  count  of  said  indictment  for  the  following 
reasons : 

First.  Said  count  is  indefinite,  uncertain,  and  insufficient 
in  law  in  that  it  does  not  state  whether  the  alleged  "false 
deposition"  was  presented  by  defendant  or  caused  to  be  pre- 
sented by  defendant,  nor  does  it  state  whether  it  was  for  the 
purpose  of  obtaining,  or  for  the  purpose  of  aiding  to  obtain, 
the  approval  of  a  false  and  fraudulent  claim  against  the  gov- 
ernment. 

Second.  Said  count  is  also  indefinite,  uncertain,  and  in- 
sufficient in  law  in  that  it  does  not  state  to  what  "vicious 
habit"  of  the  defendant  the  wound  in  the  left  arm  is  due. 

Third.  Said  second  count  of  said  indictment  is  too  insuffi- 
cient and  uncertain  to  sufficiently  apprise  the  defendant  of 
the  alleged  false  and  fictitious  statement,  in  that  the  alleged 
false  and  fictitious  statement,  to  wit:  "The  said  L.  H.  did 
not  receive  said  wound  in  the  arm  in  the  said  election  riot," 
and  the  statement,  "The  said  wound  was  due  to  his  L.  H's 
own  vicious  habits  "  are  not  deposed  to  by  the  defendant  in 
the  alleged  false  deposition  set  forth  in  said  count. 

Y.  &  Y., 
Attorneys  for  Defendant. 

(i)  Taken  from  the  record  in  U.  S.  vs.  William  Carter,  District  Court 
of  the  United  States,  Southern  District  of  Ohio. 


PROCEEDINGS   AFTER   INDICTMENT.  487 

No.  504. 

Plea  of  Misnomer. 
\_Captton^ 

And  John  Jones,  who  is  indicted  by  the  name  of  George 
Jones,  in  his  own  proper  person  now  comes  into  court,  and 
having  heard  the  said  indictment  read,  says  that  he  was  bap- 
tized by  the  name  of  John,  to  wit,  at ,  in  the  county  of 

,  in  the  state  of ,  and  by  the  Christian  name  of  John  ; 

and  has  also,  since  his  baptism,  been  called  and  known  by 
the  name  of  John,  without  this,  that  he,  the  said  John  Jones, 
now  is  or  at  any  time  hitherto  has  been  called  or  known  by 
the  Christian  name  of  George,  as  by  the  said  indictment  is 
alleged,  and  this  the  said  John  Jones  is  ready  to  verify ; 
wherefore  he  prays  judgment  of  the  said  indictment,  and 
that  the  same  may  be  quashed,  etc.  R.  Y., 

Attorney  for  Defendant. 


No.  505. 

Verification  of  Above  Plea. 


State  of 


County  of ,  ss. 

John  Jones,  the  defendant  in  this  prosecution,  makes 
oath  and  says  that  the  foregoing  plea  is  true  in  substance 
and  matter  of  fact,  and  that  the  defendant  was  baptized  by 
the  name  of  John,  and  has  never  been  known  or  called 
by  any  other  Christian  name.  John  Jones. 

Subscribed  and  sworn  to    before    me    this  day   of 

,  1894.  J.  N., 

\Seal.'\  Notary  Public  in  and  for . 


No.  506. 

Replication  to  a  Plea  of  Misnomer. 

[Caption."] 

And  hereupon  J.  H.,  the  attorney  for  the  United  States, 
who  prosecutes  in  behalf  of  the  said    United  States,  says 


488  CRIMINAL    PROCEEDINGS. 

that  the  said  indictment,  by  reason  of  anything  by  the 
said  John  Jones  in  his  said  plea  alleged,  ought  not  to  be 
quashed,  because  the  said  John  Jones,  long  before,  and  at 
the  time  of  the  preferring  of  said  indictment,  was,  and 
still  is,  known  as  well  by  the  name  of  George  Jones  as  by 

the    name  of  John  Jones,  to  wit,  at ,  in  the  county  of 

,  in  the  state   of ,  and  this  the   said    J.   H.   prays 

may  be  inquired  of  by  the  country,  etc.  J.  H., 

United  States  Attorney. 


No.  507. 

Special  Plea. 
[Caption  J] 

And  now  comes  the  said  L.  H.  in  his  own  proper  per- 
son into  court,  and  having  heard  the  said  indictment  read, 
says  that  the  said  United  States  ought  not  further  to  pros- 
ecute this  indictment  against  him,  the  said  L.  H.,  because 
he  says  [here  set  forth  the  grounds  of  the  plea]  ;  and  this 
the  said  L.  H.  is  ready  to  verify ;  wherefore  he  prays 
judgment,  and  that  he  may  be  dismissed  and  discharged 
by  this  court  from  the  said  premises  in  the  said  indict- 
ment above  specified.  R.  Y., 

Attorney  for  Defendant. 


No.  508. 

Replication  to  Special  Plea. 
\Caption?[ 

And  now  comes  J.  H.,  attorney  for  the  United  States,  in 

and  for  the district  of ,  who  prosecutes  for  the  said 

United  States  in  this  behalf,  and  says  that  the  United  States 
ought  not  to  be  precluded  from  prosecuting  the  said  indict- 
ment against  the  said  L.  H.  by  reason  of  anything  pleaded  in 
bar  as  alleged  in  this  plea  of  the  said  defendant,  L.  H.,  for  the 
reason  that  [here  set  forth  the  grounds  for  the  replication]  ; 
and  this  the  said  J.  H.  prays  maybe  inquired  of  by  the 
country. 


PROCEEDINGS   AFTER   INDICTMENT.  489 

Wherefore  he  prays  judgment,  and  that  the  said  L.  H. 
may  be  convicted  of  the  premises  in  the  said  indictment 
above  specified.  J-  H., 

United  States  Attorney. 


No.  509. 

Plea  of  Former  Jeopardy.     (Conviction.) 

[Caption.~\ 

And  the  said  L.  H.,  in  his  own  proper  person,  now  comes 
into  court,  and  having  heard  the  said  indictment  read,  and 
protesting  that  he  is  not  guilty  of  the  premises  charged  in  the 
said  indictment,  says  that  the  said  United  States  ought  not 
further  to  prosecute  the  said  indictment  against  the  said  L.  H. 
in  respect  of  the  offense  in  the  said  indictment  mentioned, 
because  he  says  that  heretofore,  to  wit,  at  the  supreme  judi- 
cial court,  begun  and  held  at ,  etc.,  [set  forth  the  former 

judgment  and  conviction  verbatim^  and  then  proceed  as  fol- 
lows .-]  as  by  the  record  thereof,  in  the  said  court  remaining, 
more  fully  appears:  which  said  judgment  and  conviction 
still  remains  in  full  force  and  effect,  and  not  in  the  least  re- 
versed or  made  void.  And  the  said  L.  H.  further  says  that 
the  said  L.  H.  and  the  L.  H.  so  indicted  and  convicted  are 
one  and  the  same  person,  and  not  other  and  different  per- 
sons. And  the  said  L.  H.  further  says  that  the  [crime 
charged^  of  which  the  said  L.  H.  was  so  indicted  and  con- 
victed as  aforesaid,  and  the  [crime  charged'\  for  which  he  is 
now  indicted,  are  one  and  the  same  [crime  charged\  and  not 
other  and  different  [cri7nes  charged\  And  this  the  said  L. 
H.  is  ready  to  verify ;  wherefore  he  prays  judgment  if  the 
said  United  States  ought  further  to  prosecute  the  said  indict- 
ment against  the  said  L.  H.  in  respect  of  the  said  offense  in 
the  said  indictment  mentioned,  and  that  the  said  L.  H.  may 
be  dismissed  and  discharged  from  the  same.  R.  Y., 

Attorney  for  Defendant. 


490  CRIMINAL   PROCEEDINGS. 

No.  510. 

Plea  of  Former  Jeopardy.     (Acquittal). 

[Caption^ 

And  the  said  L.  H.,  in  his  own  proper  person,  now  comes 
into  court,  and  having  heard  the  said  indictment  read,  and 
protesting  that  he  is  not  guilty  of  the  premises  charged  in 
the  said  indictment,  says  that  the  United  States  ought  not 
further  to  prosecute  the  said  indictment  against  the  said  L. 
H.,  because  he  says  that  heretofore,  to  wit,  at  the  district 

court  of  the  United  States  for  the district  of ,  at  the 

term  of  the  said  court  it  was  presented  that  the  said  L. 

H.  then  and  there  [here  set  forth  the  indictment^  reciting  it  in 
the  past  tense ;  recite  also  the  remainder  of  the  record  to  the  end 
of  the  judgment  in  the  past  tense  in  like  manner^  then  proceed~\\ 
as  by  the  record  thereof  more  fully  and  at  large  appears,  which 
judgment  still  remains  in  full  force  and  effect  and  is  not  in 
the  least  reversed  or  made  void,  and  the  said  L.  H.  in  fact 
says  that  he,  the  said  L.  H.,  and  the  said  L.  H.  so  indicted 
and  acquitted  as  last  aforesaid,  are  one  and  the  same  person 
and  not  other  and  different  persons,  and  that  the  [crime 
charged^  of  which  the  said  L.  H.  was  so  indicted  and  acquit- 
ted as  aforesaid,  and  the  [crime  charged^  of  which  he  is  now 
indicted,  are  one  and  the  same  [crime  charged~\  and  not  other 
and  different  [crimes  charged\  and  this  the  said  L.  H,  is 
ready  to  verify:  wherefore  he  prays  judgment,  and  that  by 
the  court  he  may  be  dismissed  and  discharged  from  the  said 
premises  in  the  present  indictment  specified,  R.  Y., 

Attorney  for  Defendant. 


No.  511. 

Demurrer  to  an  Indictment  or  Information. 

[Caption?^ 

And  now  comes  L.  H.  in  his  own  proper  person  into  court,, 
and  having  heard  the  said  indictment  [or^  information]  read, 


PROCEEDINGS   AFTER   INDICTMENT.  49X 

says  that  the  said  indictment  [<?r,  information]  and  the  mat- 
ters therein  contained  in  manner  and  form  as  the  same  are 
above  stated  and  set  forth  are  not  sufficient  in  law,  and  that 
he,  the  said  L.  H.,  is  not  bound  by  the  law  of  the  land  to 
answer  the  same,  and  this  he  is  ready  to  verify;  wherefore^ 
for  want  of  sufficient  indictment  [<?r,  information]  in  this 
behalf,  the  said  L.  H.  prays  judgment,  and  that  by  the  court 
he  may  be  dismissed  and  discharged  from  the  said  premises 
in  the  said  indictment  [or,  information]  specified. 

R.  Y., 
Attorney  for  Defendant. 

No.  512. 

Joinder  to  Demurrer  (i). 

[Cap^wn.'] 

And  J.  H.,  United  States  attorney  for  the  district 

of ,  who  prosecutes  in  behalf  of  the  said  United  States, 

says  that  the  said  indictment  and  the  matters  therein  con- 
tained in  manner  and  form  as  the  same  are  above  stated  and 
set  forth  are  sufficient  in  law  to  compel  the  said  L.  H.  to 
answer  the  same,  and  the  said  J.  H.,  who  prosecutes,  as 
aforesaid,  is  ready  to  verify  and  prove  the  same  as  the  court 
here  shall  direct  and  award.  J-  H., 

United  States  Attorney. 

(i)  In  most  circuits  the  joinder  to  a  demurrer  is  made  orally. 


No.  51 3. 

Demurrer  to  a  Plea  in  Bar. 

[Capii'oft.'] 

And  J.  H.,  United  States  attorney  for  the  district 

of ,  who  prosecutes  in  behalf  of  the  said  United  States, 

as  to  the  said  plea  of  the  said  L.  H.,  by  him  pleaded  herein,, 
says  that  the  same  and  the  matters  therein  contained  in 
manner  and  form  as  the  same  are  above  pleaded  and  set 


492  CRIMINAI.   PROCEEDINGS. 

forth,  are  not  sufficient  in  law  to  bar  or  preclude  the  United 
States  from  prosecuting  the  said  indictment  against  the  said 
L.  H.,  and  that  the  said  United  States  are  not  bound  by  the 
law  of  the  land  to  answer  the  same,  and  this,  the  said  J.  H., 
who  prosecutes,  as  aforesaid,  is  ready  to  verify,  wherefore, 
for  want  of  sufficient  plea  in  this  behalf,  the  said  J.  H.,  for 
the  United  States,  prays  judgment,  and  that  the  said  h.  H. 
may  be  convicted  of  the  premises  of  the  said  indictment 
specified.  J-  H., 

United  States  Attorney. 


No.  514. 

Joinder  to  a  Demurrer  to  a  Plea  (i). 

And  now  comes  the  saidL.  H,,  and  says  that  his  said  plea 
by  him  pleaded  herein  and  the  matters  therein  contained 
in  manner  and  form  as  the  same  are  above  pleaded  and  set 
forth,  are  sufficient  in  law  to  bar  and  preclude  the  United 
States  from  prosecuting  the  said  indictment  against  him,  the 
said  Iv.  H.,  and  the  said  L.  H.  is  ready  to  verify  and  prove 
the  same  as  this  court  shall  direct  and  award.         R.  Y., 

Attorney  for  Defendant. 

(i)  See  note  to  No.  512. 


No.  515. 

Journal  Entry  on  Plea  *'Nolo  Contendere"  (i). 

This  day  came  L.  H.,  defendant  in  this  case,  in  open 
court,  and  leave  of  court  being  first  had  and  obtained,  with- 
drew his  plea  of  not  guilty,  heretofore  pleaded  in  this  case, 
and  the  said  ly.  H.  makes  known  to  the  court  that  he  is  un- 
willing to  contest  the  charges  set  forth  against  him  in  the 
[second']  count  of  the  indictment,  and  that  he  herewith 
enters  a  plea  of  nolo  contendere  to  said  \_second]  count  of  the 


PROCEEDINGS    AFTER   INDICTMENT.  495 

indictment,  and  throws  himself  on  the  mercy  of  the  court, 
and  thereupon  J.  H.,  attorney  for  the  United  States  for  the 

district  of ,  dismisses  the  [  first,  third,  etc.^  as  may 

be\  counts  of  said  indictment,  and  thereupon  the  court,  pro- 
ceeding to  sentence  the  said  L.  H.,  doth  adjudge  him  to  pay 
a  fine  of dollars. 

(i)  See  Bishop  on  Criminal  Prac,  Sec,  469. 


No.  516. 

Petition  for  Writ  of  Habeas  Corpus  ad  Testificandum. 

The  Circuit  Court  of  the  United  States, 

District  of . 

The  United  States   |     p^^.^.^^  ^^^  ^^^^^  ^^^^^  ^^^^ 

J    I^T  r  ad  Testificandum. 

To  the   Honorable,  the  Circuit  Court  of  the  United  States 

for  the District  of : 

The  petition  of  J.  H.,  United   States  attorney  for  the 


district  of ,  respectfully  shows   to  this  honorable 

court  that  one  C.  B.  is  confined  in  the county  jail  at 

, ,  and  is  in  the  custody  of  A.  M.,  the  sherijQf  of  the 

said  county  of ,  at  said  place,  under  authority  of  the 

United  States  and  in  accordance  with  the  laws  thereof,  hav- 
ing  been  convicted  of  an  offense  against  the  laws  of  the 
United  States,  and  sentenced  to  imprisonment  in  said  jail 

for years,  from ,  1894,  by  virtue  of  which  the  said 

sheriff  now  holds  the  said  C.  B. 

Your  petitioner  avers  that  the  said  C.  B.  is  a  material  wit- 
ness fn  the  above-entitled  cause  on  behalf  of  the  plaintiffs, 

and  that  the  said  cause  is  set  for  trial  the day  of , 

1894. 

Wherefore  your  petitioner  prays  that  this  honorable  court 
do  forthwith  order  the  writ  of  habeas  corpus  ad  testificandum 
to  issue  from  this  court  to  the  said  A.  M.,  sheriflf,  as  afore- 


494  CRIMINAL   PROCEEDINGS. 

said,  requiring  him  to  produce  the  body  of  said  C.  B.  be- 
fore this  court  on  said day  of ,  1894,  to  testify  on 

behalf  of  the  plaintiff  in  the  above-entitled  cause,  and  as  in 
duty  bound  your  petitioner  will  ever  pray,  etc.       J.  H., 

United  States  Attorney. 

No.  517. 
Writ  of  Habeas  Corpus  ad  Testificandum. 

The  United  States  of  America, 

District  of ,  ss. 

To  the  Sheriff  of County, ,  Greeting : 

We  command  you,  that  you  have  the  body  of  C.  B.,  de- 
tained in  the  jail  of  said  county  under  your  custody,  as  it  is 
said,  under  safe  and  secure  conduct,  before  the  judges  of 
our   district  [or,   circuit]   court  within  and  for  the  district 

aforesaid,  on  the day  of ,  1894,  by  ten  o'clock  in 

the  forenoon  of  the  same  day,  there  to  testify  the  truth  ac- 
cording to  his  knowledge,  in  a  certain  cause  now  pending 
in  said  court,  and  then  and  there  to  be  tried,  between  the 
United  States,  plaintiffs,  and  L.  H.,  defendant,  on  the  part  of 
the  United  States,  and  immediately  after  the  said  C.  B. 
shall  then  and  there  having  given  his  testimony  before  our 
said  judges,  that»you  return  him,  the  said  C.  B.,  to  the  said 

jail  of county,  under  safe  and  secure  conduct,  and  have 

you  then  and  there  this  writ. 

[Add  teste  according  to  the  court  issuing  the  writ.  See  Nos. 
30  and  31. 


No.  518. 

Verdict — Guilty. 

[Caption?^ 

We,  the  jury,  find  the  defendant  guilty  as  charged  in  the 
indictment.  S.  W., 

Foreman. 


PROCEEDINGS   AFTER   INDICTMENT.  495 

No.  519. 

Verdict  by  Jury — Guilty. 
[Caption.'\ 

We,  the  jury  herein,  do  find  the  defendant  guilty  in  man- 
ner and  form  as  charged  in  the  first  and  third  counts  of  said 
indictment,  and  not  guilty  as  charged  in  the  remaining  counts 
thereof.  S.  W., 

Foreman. 


No.  520. 

Verdict— Not  Guilty. 
[^Caption!] 

We,  the  jury,  find  the  defendant  not  guilty. 


S.  W., 
Foreman. 


No.  521. 

Motion  in  Arrest  of  Judgment. 

The  Circuit  Court  of  the  United  States, 

for  the District  of . 

The  United  States  ^ 

vs.  V      Motion  in  Arrest  of  Juagment. 

L.  H.  J 

And  now  comes  the  defendant,  and  moves  the  court  to 
arrest  judgment  on  each  and  every  count  in  the  indictment 
herein  upon  which  the  defendant  was  convicted,  because  the 
facts  therein  stated  do  not  constitute  an  offense  against  the 
laws  and  statutes  of  the  United  States.  .    Y.  &  Y., 

Attorneys  for  Defendant. 


No.  522. 

Entry  of  Distribution  upon  Payment  of  Fine. 

[^Caption!] 

Upon  motion  of  the  United  States  attorney,  and  it  appear- 
ing to  the  court  that  the  sum  of  $ has  been  made  by  the 


496  CRIMINAI.    PROCEEDINGS. 

marshal  upon  di  fieri  facias  issued  in  this  court,  and  the  same 
paid  into  the  registry  of  the  court,  and  the  court  proceeding 
to  distribute  the  same,  orders  and  directs  that  the  said  sum 

of  $ be  paid  to  the  assistant  treasurer   of  the  United 

States  at  ,  for  the  use  of  the department  of  the 

United  States. 


No.  523. 

Final  Commitment. 

The  District  \or,  Circuit]  Court  of  the  United  States, 

District  of . 

The  United  States^ 

vs.  \      Indictment  No. . 

L.  H.  J        . 

The  defendant,  L.  H.,  having  been  tried  and  found  guilty, 
as  charged  in  the  said  indictment,  for  violation  of  Section 
of  the  Revised  Statutes  of  the  United  States. 

Thereupon  the  court  pronounced  the  following  sentence, 
to  wit:  that  the  said  ly.  H.  be  imprisoned  in  the  peniten- 
tiary of  the  state  of for  the  term  of  years  [and 

that  he  pay  a  fine  of  $ ,  and  the  costs  of  this  prosecution 

to  be  taxed,  as  the  case  may  be] ;  therefore,  this  is  to  com- 
mand the  marshal  of  said  district  to  take  the  body  of  the 
said  L.  H.  and  commit  the  same  to  the  penitentiary  of  the 
state  of pursuant  to  the  above  sentence. 

\Add  teste^  according  to  the  court  issuing  th^  commitment. 
See  Nos.  30  and  31.] 


HABEAS   CORPUS.  497 


HABEAS  CORPUS. 

No.  524. 

Petition  for  Writ  of  Habeas  Corpus  (i). 

The  District  [or,  Circuit]  Court  of  the  United  States, 

District  of . 

In  the  matter  of  the  application  of  L.  H.  for  a  writ  of  habeas 

corpus. 
To  the  Honorable  Circuit  Court  of  the  United  States  in  and 
for  the District  of : 

Your  petitioner,  L.  H.,  respectfully  represents  and  shows 
to  this  honorable  court  that  he  is  a  citizen  of  the  United 
States  and  a  resident  of  Oklahoma  Territory ;  that  he  is  un- 
justly and  unlawfully  detained  and  imprisoned  in  the  peni- 
tentiary at , ,  by  C.  J.,  warden  of  said  penitentiary, 

by  virtue  of  a  warrant  of  commitment,  a  copy  of  which  is 
hereto  attached,  marked  Exhibit  "A." 

Your  petitioner  further  shows  that  at  the term,  18 — , 

of  the  district  court  of  the  first  judicial  district  within  and 

for  county,  Oklahoma  Territory,  and  for  the   Indian 

country,  attached  thereto  for  judicial  purposes,  sitting  with 
the  powers  of  a  district  court  of  the  United  States  of  Amer- 
ica, and  the  grand  jurors  of  the  United  States  of  America, 
within  and  for  said  country,  and  that  part  of  the  Indian 
country  attached  to  said  country  for  judicial  purposes,  hav- 
ing been  empaneled,  sworn,  and  charged  to  inquire  of  oflfenses 
against  the  laws  of  the  United  States,  committed  within  that 

part  of  Oklahoma  Territory  so  attached  to county  for 

judicial  purposes,  as  aforesaid,  found  an  indictment  against 
your  petitioner  for  the  larceny  of  horses  in  that  part  of  the 
territory  attached  for  judicial  purposes  to  county,  as 


498  CRIMINAL    PROCEEDINGS. 

aforesaid,  which  said  part  of  said  territory  was  then  and  there 
Indian  country,  and  a  place  and  district  of  country  alleged 
to  be  then  and  there  under  the  sole  and  exclusive  jurisdic- 
tion of  the  United  States  of  America,  a  copy  of. which  in- 
dictment is  hereto  attached,  marked  Exhibit  "  B." 

Your  petitioner  further  shows  that  he  was  tried  upon  said 
indictment  by  said  court  sitting  with  the  powers  of  a  district 
court  of  the  United  States  of  America,  as  aforesaid,  con- 
victed and  sentenced  by  said  court  "to  be  confined  for  a 

period  of  five  years  in  the  penitentiary  at , ,  at  hard 

abor;  and  said  term  of  service  to  commence  from  the 

day  of ,  1894,  at  ten  o'clock,  and  that  he  pay  the  costs 

of  this  action," 

Your  petitioner  further  shows  that  his  term  of  imprison- 
ment did,  in  fact,  begin  on  the day  of ,  1894,  and 

that  he  has  ever  since  been  and  still  is  confined  in  said 
penitentiary  under  said  sentence. 

Your  petitioner  further  shows  that  his  detention  and  im- 
prisonment, as  aforesaid,  is  illegal,  in  this,  to  wit: 

First.  That  the  sentence  under  which  your  petitioner  is 
held  is  excessive,  illegal,  and  void. 

Second.  That  the  commitment  under  which  your  peti- 
tioner is  held  is  illegal  and  void. 

Third.  That  the  court  was  without  jurisdiction  to  im- 
pose the  particular  sentence  under  which  your  petitioner  is 
held. 

Fourth.  That  the  court  was  without  jurisdiction  or  power 
to  sentence  your  petitioner  to  imprisonment  in  a  peniten- 
tiary for  the  offense  of  which  he  was  convicted. 

Fifth.  That  your  petitioner's  imprisonment  and  deten- 
tion under  said  sentence  is  contrary  to  the  laws  of  the  United 
States. 

Sixth.  That  your  petitioner  has  already  served  a  longer 
term  of  imprisonment  than  could  be  imposed  by  law. 

Seventh.  That  there  is  no  judgment  of  the  court  upon 
which  to  pass  sentence,  or  to  base  the  commitment  herein. 


HABEAS   CORPUS.  499 

Eighth.  There  is  no  record  of  the  indictment  and  trial 
lierein,  as  required  by  law. 

Nitith.  That  the  commitment  does  not  set  out  the  sen- 
tence as  passed  by  the  court,  as  required  by  law. 

Tenth.  That  the  court  which  passed  the  above  sentence 
was  without  the  jurisdiction  of  the  offense  charged,  and  that 
the  sole  and  exclusive  jurisdiction  thereof  was  in  the  district 
court  of  Oklahoma  Territory  sitting  as  a  territorial  court,  and 
not  in  the  United  States  courts. 

Wherefore,  to  be  relieved  of  said  unlawful  detention  and 
imprisonment,  your  petitioner  prays  that  a  writ  of  habeas 

£orpus^  to  be  directed  to  the  said  C.  J.,  warden  of  the  

penitentiary,  may  issue  in  this  behalf,  so  that  your  petitioner 
may  be  forthwith  brought  before  this  court  to  do,  submit  to, 
and  receive  what  the  law  may  direct.  L.  H. 

(i)  The  warrant  of  commitment,  marked  Exhibit  "A,"  and  the  in- 
dictment, marked  Exhibit  "  B,"  should  be  attached  to  the  petition,  and 
the  petition  should  be  verified  by  an  affidavit  of  the  petitioner.  For 
form  see  No.  525. 

See  also  Desty's  Fed.  Proc,  Sec.  359  et  seq.;  R.  S.,  Sec.  751  et  seg.; 
Foster's  Fed.  Prac.,  Sees.  366  and  367,  and  notes. 


State  of 


No.  525. 

Affidavit  of  Petitioner. 


County  of ,  ss. 

L.  H.,  being  duly  sworn,  deposes  and  says,  that  he  is  the 
petitioner  named  in  the  foregoing  petition  subscribed  by  him ; 
that  he  has  read  the  same,  and  knows  the  contents  thereof, 
and  the  said  statements  made  are  true,  as  he  verily  believes. 

L.  H. 
Sworn  to  by  the  said  L.  H.  before  me,  and  by  me  sub- 
scribed, on  this day  of ,  1884.  S.  S., 

Notary  Public, 

[Seal.']  County  of . 

S.  S. 


500  CRIMINAL    PROCEEDINGS. 

No.  526. 

Writ  of  Habeas  Corpus. 

The  United  States  of  America, 

District  of ,  ss. 

To  W.  C,  Jailer  of County, : 


We  command  you  that  the  body  of  L.  H.,  in  your  custody 
detained,  as  it  is  said,  together  with  the  day  and  cause  of  his 
caption  and  detention,  you  safely  have  before  G.  W.,  judge  of 
our  district  [or,  circuit]  court  of  the  United  States,  within 
and  for  the  district  aforesaid,  to  do  and  receive  all  and  sin- 
gular those  things  which  the  said  G.  W.,  judge  of  our  said 
district  [or,  circuit]  court,  shall  then  and  there  consider  of 
him  in  this  behalf;  and  have  you  then  and  there  this  writ, 

[Add  teste  according  to  the  court  issuing  the  writ.  See  Nos. 
^oand  ^i."] 

No.  527. 

Entry — The  Finding  of  the  Court. 

[Caption  as  in  No.  524.] 

On  this day  of ,  1894,  this  cause  came  on  to  be 

heard  upon  the  application  of  a  writ  of  habeas  corpus  directed 

to  C.  J.,  warden  of  the  state   penitentiary,  and   after 

argument  qn  behalf  of  the  petitioner,  L.  H.,  by  his  counsel 
R.  X.,  Esquire,  and  by  J.  H.  on  behalf  of  the  United  States 

and  the  warden  of  the state  penitentiary,  and  the  court 

being  fully  advised  in  the  premises,  find :  [here  set  forth  the 
opinion  of  the  judge,  if  a  written  opinion  is  handed  dow7i,  or  the 
finding  by  the  court,  as  may  be\.  G.  W., 

R.  X.,  United  States  District  Judge. 

Counsel  for  Petitioner. 

J.H., 

United  States  Attorney. 


HABEAS   CORPUS.  5OI 

No.  528. 

Entry  Ordering  Discharge  of  Prisoner, 

[Caption  same  as  in  No.  524.] 

On  this day  of ,  1894,  came  the  parties  by  their 

counsel,  and  this  cause  coming  on  to  be  heard  upon  the 
copies  of  the  indictment,  journal  entry  of  the  supreme  court  of 
Oklahoma  Territory,  attaching  that  part  of  the  Indian  coun- 
try in  said  territory  to county  for  judicial  purposes,  and 

of  the  commitment  under  which  the  prisoner  is  detained  by 

the  warden  of  the state  penitentiary,  and  the  issue  of 

the  writ  and  production  in  court  of  the  body  of  said  L.  H. 
being  waived  both  by  counsel  for  petitioner  and  for  the 
United  States  and,  after  argument  of  counsel,  and  the  court 
being  fully  advised  in  the  premises,  the  court  finds  that  said 
petitioner  is  unlawfully  restrained  of  his  liberty,  and  it  is 
therefore  considered  and  ordered  by  the  court  that  said  L. 
H.  be  discharged  from  the  custody  of  the  said  warden,  as 
aforesaid,  and  that  he  go  hence  without  day. 

It   is    further  ordered,  that   the    United   States  marshal 

serve   a   copy  of  this  order  upon  the  warden   of  the  

state  penitentiary. 

To  which  finding  and  judgment  of  the  court,  the  United 
States  district  attorney  excepts,  and  prays  that  the  excep- 
tion may  be  noted. 


No.  529. 

Appeal  to  the  Circuit  Court  of  Appeals. 

The  United  States  Circuit  Court ^ 

of  Appeals  for  the Circuit, 

Term  of ,  in  the  year  of  V  Appeal. 

our  Lord  one  thousand  eight 

hundred  and  ninety-four. 

In  re  application  of  L.  H.  for  a  writ  of  habeas  corpus^ 
No.  . 

The  United  States,  by  their  attorney,  J.  H.,  feeling  them- 
selves aggrieved  by  the  order  and  judgment,  entered  on  the 


502  CRIMINAL   PROCEEDINGS. 

day  of ,  1894,  in  the  above-entitled  proceeding,  da 


Assignment  of  Error. 


hereby  appeal  from  the  said  order  to  the  circuit  court  of 

appeals  for  the circuit,  and  pray  that  their  appeal  may 

be  allowed,  and  that  a  transcript  of  the  record  of  proceed- 
ings and  papers  upon  which  said  order  is  made,  duly 
, authenticated,  may  be  sent  to  the  circuit  court  of  appeals  of 

the judicial  circuit  of  the  United  States.         J.  H., 

United  States  Attorney. 

No.  530. 

Assignment  of  Error  on  Appeal. 

The  United  States  Circuit  Courts 

of  Appeals  for  the Circuit, 

Term  of ,  in  the  year    of 

our  Lord  one  thousand  eight 

hundred  and  ninety-four.  j 

In  re  application  of  Iv.  H.,  for  writ  of  habeas  corpus. 

Afterwards,  to  wit,  on  the day  of ,  1894,  in  this 

same  term,  before  the  honorable  judges  of  the  circuit  court 

of  appeals  for  the circuit,  in  the  city  of  ,   , 

come  the  United  States  of  America,  by  their  attorney,  J.  H.,. 
and  s?7  that  in  the  record  and  proceedings  aforesaid,  there 
is  manifest  error  in  this,  to  wit: 

Tne  court  »rred  in  granting  the  application  for  the  writ 
of  habeas  corpus. 

The  court  erred  in  holding  that  "the  application  must  be 
granted  for  the  reason  that  the  sentence  was  imprisonment 
at  'hard  labor'  for  five  years,  and  the  act  under  which  the 
prisoner  was  convicted  and  sentenced  provides  for  imprison- 
ment not  more  than  fifteen  years." 

The  court  erred  in  holding  that  the  sentence  was  void. 
^     For  other  errors  appearing  upon  the  record. 

Whereas,  by  the  law  of  the  land,  the  said  writ  of  habeas 
corpus  should  have  been  discharged,  and  the  prisoner  re- 
manded to  the  penitentiary  to  serve  out  his  sentence. 


HABEAS   CORPUS.  503 

And  tlie  United  States  pray  that  the  order  and  judgment 
aforesaid  may  be  reversed,  annulled,  and  held  for  naught, 
and  for  such  other  relief  as  may  be  proper  in  the  premises. 

J.  H., 
United  States  Attorney. 

No.  531 

Entry  Allowing  Appeal. 

The  United  States  Circuit  Court " 

of  Appeals  for  the Circuit, 

Term  of ,  in  the  year  of  >      Entry. 

our  Lord  one  thousand  eight 

hundred  and  ninety-four. 

And  now,  to  wit,  on  the day  of ,  1894,  it  is  or- 
dered that  the  appeal  be  allowed  as  prayed  for.  And  it  is 
further  ordered  that  said  petitioner,  h.  H.,  may,  at  any  time 
pending  said  appeal,  be  enlarged  upon  executing  a  recogni- 
zance, with  sureties  in  the  sum  of dollars,  to  the  satis- 
faction of  the  clerk  of  this  court,  for  his  appearance  to 
answer  the  judgment  of  the  court  of  appeals,  and  upon  fail- 
ure thereof  to  give  bail,  to  remain  in  the  custody  of  the 

warden  of  the penitentiary.  G.  W., 

District  Judge. 


504  PROCEEDINGS  AGAINST  JAILER. 


PROCEEDINGS  AGAINST  JAILER.   (PRISONER 
ESCAPED.) 

No.  532. 

Motion  for  Rule  against  Jailer  to  show  Cause,  etc. 

Now  comes  J.  H.,  attorney  for  the  United  States,  and  in- 
forms the  court  that  the  defendant,    h.  H.,  on  the day 

of ,  1894,  in  pursuance  of  a  sentence  and  judgment  of 

said  court  was,  on  a  temporary  mittimus,  delivered  to  the 

marshal  and  committed  to  the  jail  of county,  in  the  state 

of ,  in  charge  of  W.  C,  to  await  further  order  of  court; 

that  on  the day  of ,  1894,  a  final  commitment  was 

issued  to  the  marshal  directing  him  to  execute  the  sentence 
of  the  court  and  deliver  the  body  of  L.  H.  to  the  warden  of 

the  penitentiary  of  the  state  of ,  to  be  imprisoned  for  the 

term  of years,  and  to  pay  the  penalty  of ,  and  on 

the day  of ,  1894,  at  7  o'clock  p.  m.,  the  marshal 

demanded  such  prisoner  of  W.  C,  keeper  of  the  county  jail, 
aud  was  informed  that  said  prisoner  had  escaped. 

Wherefore  he  prays  for  a  rule  to  issue  to  the  said  W.  C, 

jailer  of county,  to  show  cause  why  he  should  not  be 

attached  for  contempt  for  failure  to  comply  with  the  order  of 
the  court.  J.  H., 

United  States  Attorney, 
District  of . 

No.  533. 

Granting  Motion  for  Rule,  etc. 
[^Caption.'] 

This  cause  coming  on  to  be  heard  on  the  motion  for  a  rule 

to  issue  to  the  keeper  of  the county  jail  by  the  attorney 


PRISONER   ESCAPED.  505 

for  the  United  States,  and  the  same  being  submitted,  and  the 
court  being  fully  advised,  grants  the  same,  and  it  is  ordered 

that  a  rule  to  show  cause  be  issued  to  W.  C,  the  jailer  of 

county,  returnable  for  hearing  on  the day  of ,  1894. 


No.  534. 

Rule  for  Jailer  to  show  Cause,  etc. 

[^Capiz'on.l 
The  President  of  the  United  States  of  America  to  W.  C, 
jailer  of county,  state  of : 

You  are  hereby  cited  and  admonished  and  ordered  to  ap- 
pear before  our  district  [or  circuit]  court  of  the  United  States 

within  and  for  the district  of ,  on  Saturday,  the 

day  of ,  1894,  at  ten  o'clock  a.  m.,  to  show  cause,  if  any 

you  know  or  have,  why  you  should  not  be  attached  for  con- 
tempt of  court  on  failure  to  comply  with  the  order  of  court  to 
safely  keep  the  said  L.  H.  a  prisoner. 

It  is  ordered  that  the  marshal  of  this  district  make  return 
of  this  rule  on  or  before  the  appearance-day  above  noted. 

[Add  teste  according  to  court  issuing  the  rule.     See  Nos.  30 
a«^3i.] 


No.  535. 

Answer  of  Jailer  to  the  Rule  to  show  Cause. 

The  United  States,  Plaintiffs,  ^ 

vs.  \     Answer. 

W.  C,  Defendant.  j 

Now  comes  the  said  W.  C,  and  for  answer  to  the  rule  is- 
sued herein  to  show  cause  why  he  should  not  be  attached 
for  contempt  of  this  honorable  court  says  that  L.  S.  is  the 

sheriff  of county, ,  and  that  by  Section  7368  of 

the  Revised  Statutes  of  it  is  provided  : 

"  The  sheriff,  or  person  acting  as  such,  shall  have  charge 
of   the   jail   of   the   county,  and  of  all   persons   confined 


506  PROCEEDINGS   AGAINST   JAII.ER. 

therein,  and  the  same  shall  safely  keep  and  by  himself  or 
deputy  shall  at  all  times  attend  to  the  jail  and  govern  and 
regulate  the  same  according  to  the  rules  and  regulations  pre- 
scribed by  the  court  of  common  pleas." 

He  further  says  that  the  said  sheriff  of county  duly 

appointed  him,  the  said  W.  C,  and  one  C.  W.,  deputies  of 
said  county. 

That  he  was  assigned  as  such  deputy  to  be  the  keeper  of 
the  jail  of  said  county,  and  that  the  said  C.  W.  was  duly  ap- 
pointed by  said  sheriff  as  turnkey  of  the  jail  of  said  county. 
That  in  the  absence  of  the  jailer,  and  while  not  on  duty  as 
such,  the  said  C.  W.  acts  as  jailer,  and  performs  the  duties  as 
such,  and  all  of  this  was  true  at  the  time  of  the  alleged 
escape  of  said  L.  H.  He  further  says  that  the  said  L-  H. 
was  not  placed  in'his  charge  except  as  he  was  by  law  placed 
therein  when  he  was  committed  to  said  jail.  He  further 
says  that  said  L.  H.  did  escape  from  said  jail,  but  with- 
out the  knowledge  of  said  respondent  and  while  he,  said  W. 
C,  was  not  on  duty  as  such  jailer,  while  he  was  lawfully  oflf 
duty,  and  while  he  was  absent  from  said  county  jail  on  busi- 
ness, and  during  regular  hours  of  absence  as  known  and 

authorized  by  the  sheriff   of  county.      W.  C.  further 

says  that  said  escape  was  without  any  fault  on  his  part, 
and  that  he  has  not  been  guilty,  or  intended  to  be  so,  of 
contempt  of  this  honorable  court,  nor  has  he  acted  in  viola- 
tion of  his  duty  in  any  particular. 

Wherefore,  said  W.  C.  asks  to  be  dismissed  from  the  re- 
quirements of  said  rule  to  show  cause  why  he  should  not  be 
attached  for  contempt.  Y.  &  Y., 

Attorneys  for  Respondent. 

State  of ,  County  of . 

W.  C,  being  duly  sworn,  says  that  the  facts  stated  in  the 
foregoing  answer  are  true  as  he  believes.  W.  C. 

Sworn  to  before  me  and  assigned  in  my  presence  this 

day  of ,  1894.  J.  N., 

[^Seal.'\  Notary  Public  in  and  for County. 


PRISONER   ESCAPED.  507 

No.  536. 

Entry  Discharging  Jailer. 

On  reading  and  filing  the  answer  of  the  defendant,  W.  C, 
to  the  rule  to  show  cause  why  ha  should  not  be  attached  for 
contempt,  filed  against  him  in  this  cause,  and  on  motion  of. 
counsel  for  said  defendant  W.  C,  it  is  ordered  hereby  that 
the  rule  to  show  cause  why  said  W.  C.  should  not  be  attached 
for  contempt  in  this  cause  be  and  the  same  is  hereby  dis- 
charged at  the  costs  of  the  United  States. 


ADMIRALTY. 


LIBELS   IN   REM. 

No.  537. 

General  Form  (i). 


'  V     In  Admiralty. 


The  District  Court  of  the  United  States 

for  the District  of . 

To  the  Hon.  G.  W.,  Judge  of  the  District  Court  of  the  United 
States  in  and  for  the District  of : 

A.  B.,  [occupation]^  of  the  city  of ,  state  of ,  brings 

this  his  libel  against  the  ship  [or^  brig,  tug,  <?r,  steamboat,  etc!\^ 
{name  of  vessel\  whereof  C.  D.  is,  or  lately  was,  master,  now 

lying  in  port  at ,  in  the  district  aforesaid,  her  tackle, 

sails,  (2)  apparel,  furniture,  boats,  and  other  appurtenances, 
and  cargo  (3),  and  all  persons  intervening  for  their  interest 
in  said  vessel  in  a  cause  of  contract,  \or^  collision,  6>r,  salvage, 
<3r,  damage,  or^  possession,  or^  as  may  be\  civil  and  maritime, 
and  the  said  libellant  alleges  and  propounds  as  follows :  \here 
state  the  allegations  of  fact  in  numbered  articles^  the  last 
article  being  as  follozvs ;] 

.     That  all  and  singular  the  premises  are  true  and 

within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  this  honorable  court. 

Wherefore,  the  libellant  prays  that  process  in  due  form  of 
law,  according  to  the  course  of  this  honorable  court  in  cases 
of  admiralty  and  maritime  jurisdiction,  may  issue  against  the 

508 


LIBELS    IN    REM.  509 

said  vessel,  her  tackle,  sails  (2),  apparel,  furniture,  boats,  and 
other  appurtenances  (4),  and  cargo  laden  therein  (3),  and  that 
all  persons  having  or  pretending  to  have  any  right,  title,  or 
interest  therein,  may  be  cited  to  appear  and  answer  all  and 
singular  the  matters  aforesaid,  and  that  this  honorable  court 
would  be  pleased  to  decree  to  the  libellant  the  payment  of  the 
said  amount  due  to  libellant  on  his  contract  [or  whatever  the 
case  may  require^  aforesaid,  with  costs,  and  that  the  said 
vessel  may  be  condemned  and  sold  to  pay  the  same,  and  that 
the  libellant  may  have  such  other  and  further  relief  as  in 
law  and  justice  he  may  be  entitled  to  receive. 

X.  &  X.,  A.  B. 

Proctors. 

R.  X., 
Advocate. 

[Verification.     See  No.  585  et  seq.'\ 

(i)  For  the  necessary  allegations  in  a  libel,  in  rem  see  the  23d  Rule 
in  Admiralty ;  see  also  cases  cited,  Desty's  Fed.  Proc,  page  1214. 

(2)  If  the  vessel  is  a  steamboat,  insert  the  words  "engines,  boilers, 
and  machinery." 

(3)  In  a  libel  against  the  ship  only,  omit  "  and  cargo,"  and  also  "  and 
cargo  laden  therein,"  in  the  prayer. 

(4)  See  8th  Rule  in  Admiralty. 


No.  538. 

Against  a  Vessel  for  Repairs  (i). 

[Caption^  address^  and  introduction  as  in  No.  537.] 
First.     That  the  said  vessel  [name\.,  of  the  burden  of  about 
tons,  a  foreign  vessel  belonging  to  the  port  of ,  and 


for  some  time  past  and  now  lying  in  the  said  port  of 
and  being  in  need  of  repairs,  the  said  libellant  furnished  the 
necessary  materials  for  said  vessel,  and  all  necessary  work 
and  labor  upon  the  same  to  make  her  sea- worthy,  which  said 
materials  and  work  and  labor  are  particularly  set  forth,  to- 


5IO  ADMIRALTY. 

gether  with  the  time  and  date  when  the  said  materials  were 
furnished,  and  the  said  work  and  labor  done,  in  the  schedule 
hereto  annexed,  and  made  part  hereof;  and  that  the  said 
materials  furnished,  and  work  and  labor  done  by  the  libellant 
amount  to dollars,  and  that  all  of  said  materials  fur- 
nished, and  work  and  labor  done  as  aforesaid  upon  said  ves- 
sel were  necessary  to  and  for  said  vessel,  and  the  said  ma- 
terial furnished  and  the  said  labor  done  were  on  the  credit  of 
said  vessel. 

Second.  That  the  master  or  owner  of  said  vessel  hitherto 
has  refused,  and  still  refuses  to  pay  the  same,  or  any  part 
thereof,  although  often  requested  so  to  do. 

Third.  \Concludc  with  the  last  article.,  prayer.,  etc.,  as  in 
No.  537,  inserting  in  the  prayer  "[payment  of  the  amount  due 
aforesaid,"  etc..^  and  attach.,  as  schedule  y  an  itemised  bill  for  ma- 
terials and  work.l 

( I )  The  pleader  will  find  in  this  form  suflScient  guide  for  a  libel  in 
rem  for  supplies  furnished.  As  to  where  a  libel  in  rem  lies,  see  Brig 
Hester,  I  Sum.,  73 ;  also  cases  cited,  Desty's  Fed.  Proc,  1206. 


No.  539. 

By  a  Mariner  for  Wages  (i). 

The  District  Court  of  the  United  States,  "I      t     a  j    •    ii_ 
for  the- District  of .  |      I^  Admiralty. 

To  the  Hon.  G.  W.,  Judge  of  the  District  Court  of  the  United 

States  in  and  for  the District  of : 

A.  B.  of ,  late  mariner  on  board  the  ship  \or.,  brig,  or., 

schooner,  etc.^  [name  of  vessel],  now  lying  at  the   port  of 

,  in  the  district  aforesaid,  brings  this  his  libel,  against 

said  vessel,  whereof  C.  D.,  is,  or  lately  was,  master,  her 
tackle,  sails,  apparel,  furniture,  boats,  and  appurtenances, 
and  all  persons  intervening  for  their  interests  therein,  in  a 
■cause  of  subtraction  of  wages,  civil  and  maritime,  and  the 
said  libellant  alleges  and  propounds  as  follows  : 


UBEIvS   IN   REM.  5II 

First.     That  on  or  about  the day  of  ,  1894,  the 

said  vessel ,  whereof  the  said  CD.  was  then  master,  be- 
ing then  in  the  port  of ,  and  destined  on  a  voyage  to 

Liverpool,  England,  and  thence  to  Rotterdam,  Holland,  and 

thence  back  to  the  said  port  of ,  he,  the  said  C.  D.,  did 

ship  and  hire  the  libellant  to  serve  as  mariner  on  board  the 
said  ship,  for  and  during  the  said  voyage,  at  the  rate  of  wages 

of dollars  per  month,  as  per  schedule  hereto  annexed 

and  made  part  thereof ;  and  accordingly,  on  or  about  the 

day  of ,  1894,  the  libellant  entered  on  board  in  the  service 

of  said  ship  in  the  capacity  and  at  the  monthly  wages  afore- 
said, and  signed  the  usual  shipping  articles,  or  mariner's  con- 
tract; which  said  agreement  is  now  in  the  possession  of  the 
said  CD.,  and  which  for  greater  certainty  the  libellant  prays 
may  be  produced  here  in  court. 

Second.  That  the  said  ship,  having  taken  in  a  cargo  of 
general  merchandise,  proceeded  on  her  said  voyage  with  the 
libellant  on  board,  and  arrived  at  said  port  of  Liverpool,  on 

or  about  the day  of ,  1894,  with  said  cargo  on  board, 

part  of  which  she  delivered,  and  having  taken  on  board  other 
merchandise,  proceeded  on  her  voyage  to  the  said  port  of 

Rotterdam,  Holland,  where  she  arrived  on  or  about  the 

day  of ,  and  delivered  her  cargo  and  made  freight.     She 

thereupon  immediately  loaded  a  cargo  of  general  merchan- 
dise, and  proceeded  on  her  homeward-bound  voyage  to  the 

said  port  of ,  where  she  arrived  on  or  about  the day 

of ,  1894,  with  libellant  on  board,  and  was  there  safely 

moored,  and  after  the  aforesaid  voyage  was  ended,  the  said 
libellant  was  discharged  from  the  service  of  the  said  ship 
without  receiving  the  wages  due  to  him  for  the  said  voyage 

(except  the  sum  of dollars),  though  often  said  libellant 

has  requested  payment  of  the  same. 

Third.  That  during  the  whole  time  he  was  in  the  service 
of  the  aforesaid  vessel,  the  libellant  faithfully  performed  his 
duties  on  board  the  said  vessel,  and  is  entitled  to  receive  his 
wages. 


512  ADMIRALTY. 

Fourth.  '[Conclude  ivith  the  last  article.,  prayer.,  etc.,  as  in 
Form  No.  537,  inserting  in  the  prayer  "payment  of  his  wages," 
aforesaid.  A  schedule  should  be  attached  to  the  libel.  See 
No.  540.] 

(i)  R.  S.  Sees.  4546,  4547.     See  No.  626  et  seq.  for  aflfidavit,  prelim- 
inary summons,  and  certificate  of  ofl&cer. 
See  also  i3tli  Rule  in  Admiralty. 


No.  540. 

Schedule  to  be  Attached  to  Libel  for  Wages. 

Referring  to  the  foregoing  libel  and  forming  a  part  thereof. 

The [name  of  vessel~\ Dr. 

To  A.  B., 

Wages  from  the day  of ,  1894,  to day  of 

— ,  1894,  at dollars  per  month.  $ 


No.  541. 

By  a  Mariner  for  Wages  W^ithout  Written   Contract  (i), 

[Proceed  as  in  No.  539  to  the  words.,  "  he,  the  said  C.  D.,'* 
in  article  first^  and  continue  said  article  as  follows ;] 

First. he,  the  said  C.  D.,  did  ship  and 

hire  the  libellant  to  serve  as  mariner  on  board  the  said  ship 
for  and  during  the  said  voyage  ;  and  accordingly,  on  or  about 

the day  of ,  1894,  the  libellant  entered  on  board 

and  into  the  service  of  the  said  vessel  in  the  capacity  afore- 
said. 

Second.     [The  same  as  article  second.,  No.  539.] 

Third.  That  during  the  whole  time  he  was  in  the  serv- 
ice of  the  said  vessel,  the  libellant  faithfully  performed  his 
duties  in  the  capacity  aforesaid,  and  he  thereby  became  en- 
titled by  law  to  receive  the  wages  of dollars  per  month, 

as  set  forth  in  the  schedule  hereto  annexed  and  made  part 
hereof,  so  much  or  greater  wages  having  been  paid  to  one  or 


LIBELS   IN    REM.  513 

more  seamen  for  the  voyage  aforesaid,  and  no  shipping  arti- 
cles or  mariners'  contract  having  been  signed  by  the  libel- 
lant. 

Fourth.     [^Conclude  as  in  No.  539,  and  add  schedule  No, 

540-] 
(i)  See  note  to  No.  539. 


No.  542. 

By  Mariner  for  Wages  after  Ship  has  Left  Port  (i). 

\If  the  vessel  has  left  the  port  where  its  voyage  ended.,  or  is 
about  to  leave  such  port  within  ten  days  after  delivery  of  her 
cargo^  process  may  issue  on  a  libel  in  rem.  without  prelimin- 
any  summons.  {R.  S.  Sec.  4547.)  In  such  cases  there  should 
be  an  additional  allegation  in  a  separate  article.,  in  Nos.  539 
and  541,  which  may  be  as  follows ;] 

Fourth.  That  said  vessel  has  left  the  port  of  delivery 
where  the  said  voyage  ended  without  paying  to  the  libellant 
the  balance  of  wages  due  as  aforesaid.     [Or, 

Fourth.  That,  the  said  vessel  is  about  to  proceed  to  sea 
before  the  end  of  ten  days  next,  after  the  delivery  of  her 
cargo  or  ballast  [according  to  the  facts  of  the  case.Ji 

(i)  For  affidarvit,  see  No.  626  et  seq. 

No.  543. 

For   Wages  on   Discharge    before    Beginning  Voyage   (i). 

\Proceed  with  title^  address^  ifttrodtiction^  and  article  first  as 
in  No.  539,  and  continue  as  follows :  ] 

Second.     That  the  vessel  began  taking  in  cargo,  and   on 

the day  of ,  1894,  before  the  commencement  of  her 

voyage,  the  libellant  was  discharged  by  the  said  master  from 
the  services  of  the  said  vessel  without  his  consent  and  with- 
out fault  on  his  part  to  justify  his  discharge. 

Third.  That  during  the  time  he  was  in  the  service  of 
the  said  vessel,  the    said  libellant  faithfully  performed  his 


514  ADMIRALTY. 

duty,  and  is  entitled  to  receive  wages  for  three  days'  serv- 
ice, at  the  rate  of dollars  per  month  aforesaid,  to  wit, 

dollars.    He  also  claims  in  addition  thereto,  a  sum  equal 

in  amount  to  one  month's  wages  as  compensation,  to  wit, 

dollars,  amounting  in  the  aggregate  to dollars,  which 

said  sum  he  has  demanded  of  the  master,  who  refused  and 
still  refuses  to  pay  the  same  or  any  part  thereof,  and  that  the 
same  remains  wholly  unpaid  and  justly  due  to  said  libellant. 

Fourth.     [^Conclude  as  in  No.  539]. 

(I)  R.  S.  Sec.  4527. 

No.  544. 

For  Wages  on  a  Boat  on    Navigable    Rivers   and    Lakes. 

[Proceed  with  title^  address^  and  introduction^  as  in  No. 
539,  and  continue  as  follows ;] 

First.  That  the  said  [name  of  vessel^  at  the  time  when 
the  said  services  hereinafter  mentioned  were  rendered,  was 

a  vessel  of tons  burden,  and  engaged  in  the  business 

of  foreign  and  domestic  commerce,  and  navigation  upon  the 
public  and  navigable  rivers  and  waters  of  the  United 
States,  and  upon  waters  navigable  from  the  sea,  to  wit,  upon 

the river  [or^  lake],  and  that  said  vessel  now  lies  at  the 

port  aforesaid  in  said  district,  and  within  the  reach  of  pro- 
cess of  this  honorable  court  (i). 

Second.  That  at  the  dates  set  forth  on  the  schedule  at- 
tached and  made  part  hereof,  the  said  vessel,  whereof  the 

said  C.  D.  was  then  master,  being  at  the  port  of ,  the 

said  master,  by  himself  or  his  agent,  did  hire  and  ship  the 
said  libellant  to  serve  as  common  mariner  [pilot,  cook,  ^/<r.,  <?r 
as  may  be']  on  board  the  said  vessel,  at  the  rate  of  wages  set 
forth  in  full  in  the  schedule  before  mentioned.  That  in  pur- 
suance thereof,  this  libellant,  on  or  about   the day  of 

,  1894,  went  on  board  and  entered  into  the  service  of 

said  master  of  said  vessel,  as  such  mariner  [cr,  etc.],  and 
served  for  the  time  and  at  the  rate  of  wages  set  forth  in  said 
schedule. 


LIBELS   IN   REM.  515 

Third.  That  at  the  time  he  was  discharged  from  the  said 
vessel  the  wages  earned  by  him,  as  aforesaid,  were  not  paid 
to  him,  or  any  part  thereof,  except  what  is  duly  credited  in 
the  schedule  hereto  annexed ;   and  that  there  is  now  due  to 

libellant,  by  reason  of  his  services  aforesaid,  the  sum  of 

dollars,  which  the  said  master,  or  owner  of  the  said  vessel, 
hitherto  has  altogether  refused  and  still  refuses  to  pay,  al- 
though often  requested  so  to  do. 

Fourth.     That  during  the  whole  time  the  said  libellant 

was  in  the  service  of  the  said ,  to  wit,  from  the  time  he 

went  on  board  thereof,  to  the  time  of  his  leaving  the  same, 
he  faithfully  performed  his  duties  as  mariner  on  board  said 
vessel  according  to  the  best  of  his  ability,  and  was  obedient 
to  the  lawful  commands  of  the  said  master  and  to  the  other 
officers  of  the  said  vessel,  and  is  entitled  to  UiS  wages 
aforesaid. 

Fifth.     [Conclude  as  in  No,  539]. 

(i)  It  is  not  necessary  to  plead  license,  size,  or  enrollment  of  vessel. 
The  Act  of  Feb.  26,  1845,  "ot  eflFective.  The  Eagle,  8  Wall.,  15 ;  Rover, 
33  Fed.  Rep.,  514;   The  General  Cass,  i  Brown  Adm.,  334. 


No.  545. 

For  Pilotage  to  Sea  (i). 

\Proceed  with  title.,  address.,  and  introduction  as  in  No.  537, 
in  ''''Cause  of  Pilotage  ^^''  and  continue  as  follows  .•] 

First.     That  on  or  about  the day  of ,  1894,  the 

libellant  was  a  regularly  licensed  pilot,  and  the  vessel  afore- 
said being  then  in  the  port  of  ,  the  said  C.  D.,  master 

thereof,  employed  the  libellant  as  pilot,  to  take  the  said  ves- 
sel from  the  said  port  to  sea ;  accordingly  the  libellant  went 
on  board  the  said  vessel  on  the  day  aforesaid,  and  did  safely 
pilot  her  to  sea,  arriving  \here  name  the  point  outside  the  har- 
bor where  the  pilot  left  the  vessel^,  on  the  morning  of  the 

day  of ,  1894. 


5l6  ADMIRALTY. 

Second.  That  the  libellant  did  faithfully  perform  his  duty 
as  pilot  of  the  said  vessel,  and  is  entitled  to  the  regular  and 
lawful  fees  for  said  services  in  the  sum  of dollars. 

Third.  That  the  said  master  or  owner  has  not  paid  the 
said  sum,  or  any  part  thereof,  but  has  refused,  and  still  re- 
fuses to  pay  the  libellant  the  said  sum,  although  often  re- 
quested so  to  do,  and  the  same  remains  wholly  unpaid  and 
due. 

Fourth.     [Conclude  with  last  article^  prayer^  etc.^  as  in  No. 

539-] 
(i)  See  14th  Rule  in  Admiralty. 


No.  546. 

For  Pilotage  under  State  Regulations  (1). 

\Proceed  with  title^  address^  and  introduction  as  in  No.  537, 
in  a''''  Cause  of  Pilotage^''  and  continue  as  follows  {\ 

First.     That  on  or  about  the day  of ,  1894,  the 

libellant  was  a  pilot,  duly  licensed  and  qualified  in  accord- 
ance with  the  laws  of  the  state  of ,  and  of  the  statute  of 

the  United  States  in  such  case  made  and  provided,  to  pilot 

vessels  to  and  from  the  port  of ;  that   being  then  on 

board  the  pilot  boat upon  the  high  seas,  and  on  waters 

in  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court,  to- wit  \here  describe  the 
position  of  the  pilot  boat^  as  for  e.  g.  one   mile  south   from 

light-house,  on  the  east  edge,  near  the  white  buoy], 

seeing  a  signal  for  a  pilot  from  a  vessel  approaching  from  the 
southwest,  which  proved  to  be  said  vessel,  the  \name  ofvessel\ 

drawing feet  of  water,  and  bound  to  the  port  of , 

he  immediately  went  on  board  the  said  vessel,  whereof  the ' 
'  said  C.  D.  was  then  master,  and  at  the  request  of  said  master 
piloted  her  safely  to  her  anchorage  in  the  port  of afore- 
said, as  directed  by  said  master. 


LIBELS    IN   REM,  517 

Second.  That  for  the  services  mentioned  in  the  first  arti- 
cle, the  libellant  is  entitled  by  law  to  receive  of  and  from  the 

said  master  or  owner  of  the  said  vessel, ,  the  sum  of 

dollars.  That  the  said  master  or  said  owner  has  not  paid  to 
the  libellant  said  some  of  money,  or  any  part  thereof,  although 
often  requested  so  to  do,  and  the  same  remains  wholly  un- 
paid and  due. 

\Conclude  with  the  last  article^  prayer^  etc.^  as  in  No.  537.] 

(i)  R.  S.,  4235.    See  also  14th  Rule  in  Admiralty,  and  cases  cited  in 
Desty's  Fed.  Proc.  under  this  rule. 


No.  647. 

For  Pilotage  in  Extraordinary  Danger. 

\If  the  services  of  the  pilot  is  attended  with  extraordinary 
danger^  owing  to  the  disabled  condition  of  the  vessel  or  the 
tempestuous  state  of  the  weather^  he  is  entitled  to  extra  compen- 
sation^ and  it  should  be  set  forth  in  a  separate  article.  In  such 
cases  ^proceed  with  title  ^  address^  and  ifttroduction^  and  article 
Jirst^  as  in  No.  546,  and  continue  as  follows  :  ] 

Second.  That  owing  to  the  tempestuous  state  of  the 
weather,  [or,  disabled  condition  of  the  vessel,  as  the  case 
may  be\  ,  \here  state  the  special  peril ^  care^  or  skill  required  to 
safely  pilot  the  vessel  ] . 

Third.     [  The  same  as  the  second  article  in  No.  546.] 

Fourth.  That  by  reason  of  the  extraordinary  peril,  care, 
skill,  and  exertions  mentioned  in  the  second  article,  the  libel- 
lant reasonably  deserves  to  receive  of  and  from  the  said  mas- 
ter or  owner  the  further  sum  of dollars. 

Fifth.  That  the  said  master  or  owner  has  not  paid  to  the 
libellant  either  of  the  said  sums  mentioned,  or  any  part 
thereof,  although  often  requested  so  to  do,  and  that  the  same 
remains  wholly  unpaid  and  due. 

Sixth.  [^Conclude  with  the  last  article^  prayer^  etc.y  as  in 
^o.  537.] 


5l8  ADMIRALTY. 

No.  548. 

For  Wharfage  (i). 

[Proceed  with  title^  address^  and  introduction  as  in  No.  537, 
in  '■''A  Cause  of  Wharfage^''  and  continue  as  follows :  ] 

First.  That  the  libellant  is,  and  was  at  the  time  herein- 
after mentioned,  the  owner  of  a  certain  wharf  in  the  port 
of . 

Second.     That  the  said  ship,  [or,  brig,  schooner,  etc.,  as 

may  be\  , [name  of  vessel~\, ,  of  the  burden  of  about 

tons,  was,  at  the  time  hereinafter  mentioned,  a  foreign 


vessel,  belonging  to  the  port  of . 

Third.     That  the  said  [name  of  vessel\  on  or  about  the 
day  of ,  1894,  at  the  instance  and  request  of  the  said 


C.  D.,  then  master  thereof,  was  received  by  the  libellant  as 
such  wharfinger,  and  moored  at  the  said  wharf  where,  through 
the  care  of  the  libellant,  his  agents  and  servants,  she  has 
lain  in  safety  to  the  present  time. 

Fourth.  That  the  libellant  is  informed  and  believes  that 
the  said  master  is  preparing,  and  intends  soon  to  remove 
the  said  vessel  from  the  said  wharf,  and  immediately  proceed 
with  her  to  sea,  without  the  consent  of  the  libellant,  and 
without  paying  wharfage. 

Fifth.  That,  according  to  the  customary  rate  of  compen- 
sation paid  for  the  wharfage  of  said  vessel  at  the  port 
aforesaid,  the  libellant  is  wholly  entitled  to,  by  reason  of  the 
premises,  to  demand  and  have,  [or.,  that  by  reason  of  the 
premises,  the  libellant  reasonably  deserves  to  have]  ,  for  the 

wharfage    of    the    said  ,  of  and  from    the    said  C.   D., 

master  as  aforesaid,  or  from  the  owner  of  the  said  vessel,  the 
sum  of dollars. 

Sixth.      That  neither  the  master  of  said [name  of 

vessel'^ ,  nor  her  owner,  has  paid  to  the  libellant  said  sum  of 
money,  or  any  part  thereof,  but  have  hitherto  wholly  neg- 
lected so  to  do,  although  often  requested  to  pay  the  same, 
and  the  same  is  now  justly  due  to  the  libellant. 


LIBELS   IN    REM.  519 

Seventh.  \Conclude  with  last  article.^  prayer.,  etc.,  as  in  No. 
537,  inserting  in  prayer  "  for  wharfage."] 

(i)  It  is  not  necessary  to  allege  that  the  vessel  was  fastened  to  wharf 
The  Wm.  H.  Breirsfield,  39  Fed.  Rep.  215. 


No.  549. 

For  the  Nonfulfillment  of  a  Contract  for  Transportation 

of  Goods. 

\Proceed  with  title.,  address.,  and  introduction.,  as  in  No.  537, 
in  '■^A  Cause  of  Contract^''  and  continue  as  follows i\ 

First.     That  on  or  about  the day  of ,  1894,  the 

said  vessel  [/tame],  whereof  the  said  C.  D.  was  then  master, 

being  then  in  the  port  of  ,  and  destined  on  a  voyage 

upon  the  high  seas,  and  on  waters  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States  and  of  this  hon- 
orable court,  to  wit :  from  the  said  port  of to ,  the 

libellant  being  the  owner  of  fifty  bales  of  cotton,  of  the 

value  of dollars,  made  a  contract  with  the  said  C.  D.  as 

such  master,  whereby  he  agreed,  in  consideration  of  certain 

freight,  to  convey  the  said  cotton  from  the  said  port  of 

to aforesaid,  and  there  to  deliver  the  same  in  good  order 

and  condition  to  ,  saving  and  excepting  any  such  loss 

and  damage  as  might  happen  by  perils  on  the  seas;  that  the 
libellant  on  the  same  day  delivered  to  the  said  master  the 
same  cotton  in  good  order,  and  received  from  him  a  bill  of 
lading  therefor,   (i) 

Second.  That  the  said  ship  shortly  afterwards  started  on 
her  voyage,  and  the  said  CD.,  master  as  aforesaid,  not  re- 
garding his  duty  in  that  respect,  nor  his  promise  and  under- 
taking to  convey  and  deliver  the  said  cotton  as  aforesaid, 
did  not  so  convey  and  deliver  the  same,  although  no  dangers 
of  the  seas  prevented  him  from  so  doing,  but  on  the  contrary 
thereof,  was  negligent  and  careless  in  conducting  himself 
with  respect  to  the  cotton,  that  by  and  through  the  mere 
carelessness  and  negligence  of  the  said  C.  D.  and  his  servants, 


520  ADMIRAI^TY. 

the  said  cotton  became  and  was  wholly  lost  to  the  libellant 
[or,  that  the  ship,  after  leaving  port,  sprang  a  leak,  whereby 
the  goods  were  wetted,  and  thereby  damaged,  by  reason  of 
the  vessel  not  being  staunch  and  tight  when  she  left  port, 
or  as  may  be] ;  by  reason  whereof  the  libellant  has  sustained 
damage  to  the  amount  of  two  thousand  dollars. 

Third.     [Conclude  as  in  No.  537,  alleging  in  the  prayer., 
"payment  of  damages  aforesaid."] 

(i)  This  clause  should  be  omitted  if  no  bill  of  lading  be  g^ven,  and 
the  preceding  clause  should  conform  to  the  exception  stated  in  the  bill 
of  lading  when  one  is  given. 


No.  550. 

Against  Merchandise  for  Possession. 

[  Title  and  address^ 

A.  B.  [occupation].,  of  the  city  of ,  state  of ,  brings 

this,  his  libel,   against   fifty  barrels  of  flour,  marked  J.  S., 

and  against  C.  D.,  master  of  the  schooner ,  in  a  cause  of 

possession,  civil  and  maritime,  and  the  said  libellant  alleges 
and  propounds  as  follows  : 

First.     That  on  or  about  the day  of ,  1894,  the 

said  vessel  was  lying  at  the  port  of  Amsterdam,  Holland,  and 
destined  thence  on  a  voyage  to  the  port  of  New  York,  and 
that  on  the  day  aforesaid  L.  M.,  of  Amsterdam,  shipped  on 
board  said  vessel,  consigned  to  the  libellant,  fifty  barrels  of 
flour  marked  J.  S.,  and  the  said  master,  C.  D.,  signed  the 
usual  bill  of  lading  for  the  same,  whereby  he  agreed  to  de- 
liver said  flour  to  the  libellant  at  New  York  upon  payment 

of  the  freight  for  the  same  at  the  rate  of dollars  per 

barrel,  a  copy  of  which  bill  of  lading  is  hereto  attached. 

Second.     That  on  or  about  the day  of ,  1894,  the 

said  vessel  had  arrived  at  the  port  of  New  York,  and  the 
libellant  on  that  day  paid  to  the  said  master  the  freight  due 
upon  said  flour,  to  wit,  the  sum  of  dollars,  and  de- 
manded the  delivery  thereof,  the  said  master  refused  to  de- 


IvIBELS   IN    REM.  521 

liver  the  same  to  the  libellant  unless  the  libellant  would  pay 
dollars  as  an  average  contribution  ;  this  sum  the  libel- 
lant refused  to  pay  because  he  was  not  and  is  not  liable 
therefor  and  not  bound  to  pay  the  same ;  the  said  master  still 
refuses  to  deliver  to  him  the  said  merchandise,  of  value  of 
more  than dollars,  to  the  great  damage  of  the  libellant. 

Third.     That  the  said  fifty  barrels  of  flour  are  now  in  the 

city  of ,  and  within  reach  of  process  of  this  honorable 

court. 

Fourth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  this  honorable  court. 

Wherefore  the  libellant  prays  that  process  in  due  form 
of  law,  according  to  the  course  of  this  honorable  court  in 
cases  of  admiralty  and  maritime  jurisdiction,  may  issue 
against  the  said  fifty  barrels  of  flour,  and  that  the  said  C.  D. 
may  be  cited  to  appear  and  answer  all  and  singular  the  mat- 
ters aforesaid,  and  that  it  will  please  this  honorable  court  to 
decree  that  the  said  flour  may  be  delivered  to  the  libellant, 
and  that  the  said  CD.  may  be  condemned  to  pay  to  the 
libellant  the  damages  sustained  by  him,  together  with  his 
reasonable  costs  and  expenses,  and  that  the  libellant  may 
have  such  other  and  further  relief  as  in  law  and  justice  he 
may  be  entitled  to  receive.  A.  B. 

X.  &  X., 
Proctors. 

R.  X., 
Advocate. 

\yerification.     See  No.  585  et  seq.'\ 


No.  551. 

By  a  Part  Owner  against  his  Partner  for  Security  for  the 
Safe  Return  of  the  Vessel. 

[Proceed  with  title^  address^  and  introduction^  as  in  No.  537, 
as  far  as  the  words  "  and  appurtenances,"  and  continue  as  fol- 


522  ADMIRALTY. 

lows:']  and  also  against  E.  F.  of ,  and  all  other  persons 

intervening  for  their  interests  therein,  in  a  cause  of  possession, 
civil  and  maritime,  and  the  said  libellant  alleges  and  pro- 
pounds as  follows : 

First.     That  the  said-  brig  \or  as  may  be]  is  a  maritime 

vessel  of  about  tons  burden,  and  the  libellant  is  the 

true  and  lawful  owner  of  three-sevenths  parts  [or  as  may  be] 

of  the  said , ,  and  the  said  E.  F.  is  the  owner  of  the 

remaining  four-sevenths  parts  thereof. 

Second.  That  the  aforesaid  E.  F.,  being  in  possession  of  the 
said  vessel,  and  assuming  and  exercising  his  power  of  employ- 
ing her  according  to  his  will  and  pleasure,  declares  it  to  be  his 
intention,  and  is  preparing  to  send  the  said  brig  [or  as  may 

be]  on  a  voyage  to ,  under  the  charge  of  the  aforesaid 

C.  D.,  who  has  been  constituted  master  for  the  said  voyage 
by  the  said  E.  F.  without  consultation  with  the  libellant. 

Third.  That  the  libellant  disapproves  of  the  said  con- 
templated voyage,  and  of  the  appointment  of  the  said  C.  D. 
as  such  master,  and  he  has  repeatedly  informed  the  said  E. 
F.  of  his  objections  thereto.  That  the  said  libellant  is  will- 
ing, and  has  repeatedly  offered  and  proposed  to  the  said  E. 
F.  to  send  the  said  brig  at  their  joint  expense  and  risk  on 
some  other  shorter  or  less  hazardous  voyage  [or  as  may  be], 
to  be  mutually  agreed  upon  between  the  said  E.  F  and  the 
libellant,  and  under  the  charge  of  some  other  more  com- 
petent and  trustworthy  master,  to  be  by  them  jointly  ap- 
pointed [or  if  the  libellant  desires  to  send  the  vessel  on  some  par- 
ticular voyage,  the  fact  should  be  so  stated] ;  but  that  the  said 
E.  F.  utterly  refuses  to  accede  to  the  wishes  of  the  libellant 
in  this  behalf,  and  persists  in  his  aforesaid  design,  against 
the  will  and  expostulations  of  the  libellant. 

Fourth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  this  honorable  court. 

Wherefore  the  libellant  prays  that  a  warrant  of  arrest  may 
issue  against  the  said  brig,  [name]  her  boats,  tackle,  apparel^ 


LIBEI^S    IN    REM.  523 

and  furniture,  and  also  process  of  monition,  commanding  the 
marshal  to  cite  and  admonish  the  aforesaid  E.  F.,  part  owner 
of  the  said  brig  as  aforesaid,  and  the  aforesaid  C.  D.,  master 
as  aforesaid,  and  all  other  persons  in  general  who  have  or 
pretend  to  have  any  right,  title,  or  interest  therein,  to  appear 

before  this  honorable  court,  on  the day  of ,  or  on 

such  day  to  be  inserted  in  the  said  process  as  the  court  shall 
for  that  purpose  direct,  then  and  there  to  answer  the  libel- 
lant  in  the  premises,  and  especially  to  show  cause,  if  any 
they  have,  why  the  said  brig  [fiame]  should  not  be  detained 
in  custody,  and  not  allowed  to  depart  from  the  aforesaid  port 

of ,  until  good  and  sufficient  security  be  given  to  the 

libellant  to  the  extent  of  his  aforesaid  interest  therein ;  and 
if  no  sufficient  cause  to  the  contrary  be  shown,  that  this  hon- 
orable court  will  pronounce  accordingly,  and  will  decree  the 
said  brig  to  remain  under  arrest  until  such  security  shall  be 
given  as  aforesaid,  and  for  such  other  and  further  relief  and 
redress  as  to  right  and  justice  appertain,  and  the  court  is 
competent  to  give  in  the  premises.  A.  B. 

X.  &  Y., 
Proctors. 

R.  X., 
Advocate. 

[Verijication.     See  No.  585  et  seq^ 


No.  552. 

For  Salvage. 

\^Tttle  and  address!] 

A.  B.,  of  ,  owner,  and  C.  D.,  of  ,  master,  of  the 

ship  [ory  brig,  6>r,  schooner,  as  may  be\  hereinafter  men- 
tioned, as  well  as  also  for  the  several  persons  composing  the 
crew  of  the  said  vessel,  as  for  themselves,  viz.  [here  insert 
the  names  and  capacity  of  the  crew^  as  E.  F.,  seaman,  G.  H., 
cook,  etc.^y  bring  this,  their  libel,  against  the  ship  \or  as 
may  be\  now  lying  in  the  port  of ,  in  the  district  afore- 


^24  ADMIRALTY. 

said,  whereof  J.  K.  is,  or  lately  was,  master,  her  tackle,  sails, 
apparel,  furniture,  boats,  and  appurtenances,  and  cargo  laden 
on  board  the  said  vessel  at  the  time  when  the  salvage  ser- 
vices hereinafter  mentioned  were  rendered,  and  against  all 
persons  intervening  for  their  interests  therein,  in  a  cause  of 
salvage,  civil  and  maritime,  and  the  said  libellants  allege 
and  propound  as  follows: 

First.     That  on  or  about  the day  of ,  1894,  the 

aforesaid  vessel ,  of tons  burden,  whereof  the  said 

A.  B.  was  then  owner,  (i)  and  the  said  CD.  was  master,  and 

having  a  crew  of  men  besides  the  said  master,  sailed 

from  the  port  of ,  with  a  valuable  cargo  of  salt,  on  a  voy- 
age to  Rio  Janeiro,  Brazil. 

Second.     That  while  proceeding  on  her  voyage  at  about 

(f  clock  on  the  day  of ,  1894,  the  said  vessel 

being  at  sea,  at  about miles  from  Old  Point  Com- 
fort, Virginia,  with  the  wind  blowing  hard  and  a  heavy  sea 
running,  the  firing  of  guns  was  heard  from  a  vessel  in  the 
distance,  and  to  the  windward  a  ship  \or  as  may  be]  was  seen, 

and  thereupon  orders  were  given  on  board  the  said to 

bear  down  to  the  said  ,  which  was  immediately  done, 

and,  after  much  difficulty,  the  said approached  the  said 

,  which  proved  to  be  the  from  Havana,  Cuba,  of 

tons  burden,  of  the  value  of  dollars,  bound  for 

New  York,  with  a  valuable  cargo  of  sugar  of  the  value  of 

about dollars,  and  navigated  by  the  master,  the  mate, 

and seamen. 

Fourth.     That  the  said  vessel  was  in  a  leaky  and  almost 

sinking  state,  having  about feet  of  water  in  her  hold, 

and  the  water  fast  gaining  on  her,  and  her  crew  totally  ex- 
hausted from  their  incessant  work  at  the  pumps. 

Fifth.     That  the  mate  and  four  of  the  crew  of  the  said 

went  on  board  the  said at  the  risk  of  their  lives, 

and  a  consultation  was  held  between  the  said  J.  K,,  master 

of  the  said ,  and  the  said  C.  D.,  master  of  the  said . 

It  was  then  determined  by  them,  on  account  of  the  wind  and 


LIBEirS   IN    REM.  525 

other  circumstances,  to  run  for  the  port  of  Old  Point  Com- 
fort, distance  about  miles,  as  aforesaid,  and  the  mate 

and  four  of  the  crew  of  the  said should  remain  on  board 

the  said and  work  at  the  pumps  and  otherwise  assist  in 

the  navigation  of  the  said ,  which  was  accordingly  done, 

and  the  two  vessels  proceeded  in  company  for  Old  Point 
Comfort,  a  light  being  put  in  the  rigging  for  the  guidance  of 
the during  the  night. 

Fifth.     That  the  pilot  came  on  board  the  said  {disabled 

vessel]  about o'clock  on  the day  of ,  1894,  and 

about o'clock  on  the  same  [or,  following,  as  may  be\  day, 

the  said was  safely  moored  in  the  harbor  of  Old  Point 

Comfort. 

Sixth.     That  but  for  the  assistance  so  rendered  by  the  said 

,  the  cargo  and  crew  would  most  probably  have 

been  lost,  inasmuch  as  the  crew  could  not,  from  their  ex- 
hausted state,  have  kept  her  much  longer  afloat,  nor  have 
brought  her  into  port. 

Seventh.  That  the  said  libellants,  by  reason  of  the  perils 
necessarily  incurred,  and  the  great  importance  and  nature  of 

the  services  rendered  by  them  in  saving  the  and  her 

cargo,  reasonably  deserve  to  have,  and  therefore  claim,  a 
commensurate  reward  for  salvage  therefor. 

Eighth.  That  all  and  singular  the  premises  are  true,  and 
within  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  this  honorable  court. 

Therefore  the  libellants  pray  that  process,  in  due  form  of 
law,  according  to  the  course  of  the  courts  of  admiralty  and 
this  honorable  court,  in  a  cause  of  admiralty  and  maritime 

jurisdiction,  may  issue   against  the  ,  her  tackle,  sails, 

apparel,  furniture,  boats,  and  appurtenances,  and  against  the 
cargo  aforesaid,  and  that  all  persons  having,  or  pretending 
to  have,  any  right,  title,  or  interest  in  the  said  vessel,  and  the 
cargo,  may  be  cited  to  appear  and  answer  all  and  singular 
the  matters  aforesaid ;  and  that  this  honorable  court  would 
be  pleased  to  decree  such  a  sum,  or  proportion,  of  the  value 


526  ADMIRALTY. 

of  the  said and  her  cargo,  to  be  due  to  the  libellants  as 

a  compensation  of  the  said  salvage  services  as  shall  seem  to 
the  court  meet,  together  with  their  expenses  in  this  behalf, 
and  such  other  further  relief,  or  distress,  as  the  court  may  be 
competent  to  give  in  the  premises. 

X.  &  X.,  A.  B.,  Owner. 

Proctors.  C.  D.,  Mate. 

R.  X.,  E.  F.,  Seaman. 

Advocate.  Etc. 

[  Verification.     See  No.  585  et  seg.'\ 

(i)  This  allegation  is  necessary  in  some  districts,  at  least.    The 
Cherokee,  30  Fed.  Rep.,  640. 


No.  553. 

On  a  Bottomry  Bond  against  the  Vessel,  Freight, 
and  Cargo  (i). 

[  Title  and  address^ 

A.  B.,  of  Liverpool,  England,  \occupatiofi\^  brings  this  libel 
against  the  ship,  \or^  brig,  etc^^  [name  of  vessel^  whereof  C. 

D.  is  or  was  lately  master,  now  lying  in  the  port  of ,  in 

the  district  aforesaid,  her  tackle,  sails,  apparel,  furniture, 
boats,  and  appurtenances,  and  against  freight  earned  by  the 
said  vessel  in  the  voyage  hereinafter  mentioned,  and  the 
cargo  hereinafter  mentioned,  now  [<9r,  lately]  laden  on  board 
the  said  vessel,  and  all  persons  intervening  for  their  interests 
in  the  said  ship,  in  a  cause  of  bottomry,  civil  or  maritime, 
and  the  said  libellant  alleges  and  propounds  as  follows : 

First.     That  on  or  about  the day  of ,  1893,  while 

the  said  vessel  was  on  a  voyage  from  Amsterdam,  Holland, 

to  the  port  of ,  she  encountered  a  severe  gale,  which  so 

injured  her  that  she  was  obliged  to  change  her  course  and 
put  into  the  port  of  lyiverpool,  England,  for  repairs,  supplies, 
and  necessities  to  enable  her  to  complete  her  voyage  afore- 
said. 

Second.     That  the  said  master  being  in  want  of  the  funds 
necessary  for  this  purpose,  amounting  to  the  sum  of 


LIBELS    IN    REM,  527 

dollars,  and  having  no  other  means  of  procuring  the  same, 
he,  the  said  C.  D.,  master  as  aforesaid,  borrowed  the  said  sum 

of dollars  of  the  libellant  on  bottomry,  at  the  rate  of 

per  cent,  premium  on  the  voyage  aforesaid,  which  said  sum 
was  by  the  libellant  accordingly  advanced  to  the  said  C.  D. 
for  the  purpose  aforesaid. 

Third.  That  in  consideration  of  the  said  advance,  he,  the 
said  C.  D.,  as  master,  did,  by  a  certain  bond,  or  instrument 
of  bottomry  and  hypothecation,  a  copy  of  which  is  hereto 

annexed  and  made  part  hereof,  and  bearing  date  of  the 

day  of ,  1893,  by  him  duly  executed  in  the  presence  of 

two  creditable  witnesses,  who  respectively  subscribed  their 
names  thereto  as  witnesses  to  the  due  execution  thereof,  bind 
the  said  vessel,  her  tackle,  sails,  apparel,  furniture,  boats,  and 
appurtenances,  and  also  the  freight  which  should  become  due 
for  the  aforesaid  voyage,  and  also  the  cargo  on  board  the 

said  vessel,  for  the  payment  of  the  aforesaid  sum  of 

dollars,  together  with  the  aforesaid  premium  thereof,  amount- 
ing in  the   whole  to  the  sum  of dollars,  at  or  before  the 

expiration  of  five  days  after  the  arrival  of  the  said  vessel  at 
her  mooring  in  the  port  of . 

Fourth.  That  the  said  sum  of dollars  was  so  ad- 
vanced and  paid  by  the  said  A.  B.  upon  the  credit  of  the  said 
vessel,  as  well  as  upon  the  credit  of  the  said  master  thereof 
personally,  for  the  purpose  aforesaid,  and  was  necessary 
therefor,  inasmuch  as  the  said  vessel  could  not  have  sailed 
from  Liverpool  if  the  sum  had  not  been  advanced  and  paid 
as  aforesaid. 

Fifth.  That  the  said  vessel,  having,  by  the  means  of  the 
said  loan,  been  fitted  for  sea,  proceeded  with  a  cargo  on  board, 

consisting  of ,  to  ' ,  aforesaid,  where  she  arrived  in 

safety,  on  or  about  the day  of ,  1893. 

Sixth.     That  the  aforesaid  sum  of dollars  has  not, 

or  any  part  thereof,  been  paid  to  the  libellant,  nor  to  any  per- 
son authorized  to  receive  same  in  his  behalf,  though  the  said 
CD.  has  often  been  requested  to  pay  same. 


5a8  ADMIRALTY. 

Seventh.  [Conclude  with  the  last  article^  prayer.^  etc..^  as  in 
No.  537,  and  attach  bond^ 

(i)  This  form  may  be  used  for  a  libel  against  vessel  alone,  or  vessel 
and  freight,  by  omitting  the  clauses  referring  to  cargo  and  freight,  as 
the  case  may  be. 


No.  554. 

For  Damages  by  Collision. 

[Proceed  with  the  title ^  address.,  and  introduction.,  as  in  No. 
537,  in  '■'•A  Cause  of  Collision^"*  and  continue  as  follows  :'\ 

First.  That  the  libellant,  at  the  time  of  the  happening 
of  the  damage   and  injury  hereinafter  mentioned,  was,  and 

still  is,  the  owner  of  the  schooner  Edith,  of  about tons 

burden. 

Second.     That  on  or  about  the day  of ,  1893,  the 

said  schooner,  being  tight,  staunch,  and  well  manned  and 
provided,  sailed  from  the  port  of  Philadelphia,  in  the  state  of 
Pennsylvania,  with  a  valuable  cargo  of  flour,  on  a  voyage  to 
the  port  of  New  Orleans,  in  the  state  of  Louisiana. 

Third.     That  during  the  said  voyage,  to  wit,  about  up. 

m.,  on  the day  of ,  1893,  the  said  schooner  being 

then  about  ten  miles  easterly  from  Old  Point  Comfort,  Virginia, 
with  the  wind  blowing  hard  from  east-southeast,  and  the  said 
schooner  being  close  hauled  on  her  starboard  tack,  her  course 
lying  east-southeast,  E.  F.,  the  first  mate  of  the  said  schooner, 
who  then  had  the  watch,  and  was  the  commanding  officer 
on  deck,  being  on  the  lookout,  saw  lights  ahead,  and  soon 
after  discovered  they  were  borne  by  a  steamboat  approaching 
the  schooner  in  a  northwesterly  direction,  apparently  about 
one  mile  distant,  and  then  bearing  about  one  point  on  her  lee 
bow;  then  as  soon  as  the  said  E.  F.,  mate  as  aforesaid,  had 
discovered  the  approach  of  the  said  steamboat,  he  informed 
the  helmsman  of  the  said  schooner  thereof,  and  ordered  him 
to  keep  her  steady,  believing  that  the  said  steamboat  would 
pass  her  on  the  larboard  hand.  That  about  three  minutes 
after  the  said  order  was  given  it  became  apparent  to  the  said 


LIBELS   IN    REM.  529 

mate  that  there  was  ground  to  apprehend  a  collision  with  the 
said  steamboat;  and  within  one  or  two  minutes  thereafter 
he  became  satisfied  that  such  collision  was  inevitable  unless 
proper  means  were  immediately  resorted  to  by  the  persons 
having  charge  of  the  said  steamboat  to  prevent  the  threat- 
ened disaster.  Whereupon,  the  said  steamboat  having  in  the 
meantime  approached  within  speaking  distance,  the  said  E. 
F.,  mate,  as  aforesaid,  instantly  shouted,  "  Port  your  helm; 
stop  your  engine,"  and  several  times  repeated  this  request, 
and  continued  to  do  so,  in  a  loud  and  audible  voice,  until, 
about  a  minute  and  a  half  after  first  hailing  the  said  steam- 
boat, she  struck  the  said  schooner,  stem  on,  on  her  larboard 
bow,  and  so  greatly  injured  the  said  schooner  that  she  im- 
mediately began  to  fill  with  water,  and,  in  spite  of  the  most 
strenuous  exertions  on  the  part  of  all  on  board  to  keep  her 
afloat  she  soon  thereafter  sunk,  and  was,  with  her  cargo, 
totally  lost,  her  officers  and  crew  having  with  difficulty 
saved  their  lives  by  getting  on  board  the  said  steamboat. 

Fourth.  That  the  said  steamboat  by  which  the  damage 
had  been  done  proved  to  be  the  Pluto,  aforesaid,  under  the 

command  of  G.  H.,  as  master  thereof,  and  being  of  about 

tons  burden,  bound  on  a  voyage  from  Pensacola,  Florida,  to 
New  York.  That  at  the  time  when  the  lights  were  first  dis- 
covered from  the  Edith,  as  hereinbefore  mentioned,  the  Edith 
carried  a  light  suspended  from  the  outer  end  of  her  bow- 
sprit, which  remained  there  until  she  was  struck  by  the 
Pluto,  and  although  there  was  considerable  haze  on  the 
water,  the  said  light  could  have  been  easily  seen,  and  if  she 
kept  a  good  lookout,  must  have  been  seen  by  her  at  the  dis- 
tance of  half  a  mile,  or  at  least  of  a  quarter  of  a  mile,  and 
in  season  to  have  enabled  her  to  have  given  way  for  the  said 
Edith,  as  she  was  bound  to  do,  and  thereby  to  prevent  a 
collision  therewith. 

Fifth.  That  if  at  the  time  the  said  Pluto  was  first  hailed 
from  the  Edith,  and  thenceforth,  she  had  had  a  proper 
watch  on  deck,  the  warning  given  by  the  mate  of  the  Edith, 
as  hereinbefore  mentioned,  must  have  been  distinctly  heard 


530  ADMIRALTY. 

on  board  the  Pluto,  in  season  to  have  enabled  her,  by  put- 
ting her  helm  to  port,  to  pass  the  Edith  in  safety;  or  by  im- 
mediately stopping  her  engine,  greatly  to  diminish  the  vio- 
lence of  the  blow.  But  instead  of  so  doing,  the  said  steam- 
boat Pluto  kept  on  her  previous  course;  and  although  she 
was  running  at  the  rate  of  twelve  knots  an  hour,  her  speed 
was  not  slackened ;  and  the  aforesaid  G.  H.,  master  of  the 
said  Pluto,  admitted  to  the  aforesaid  E.  F.,  mate  of  the 
Edith,  soon  after  the  said  E.  F.  got  on  board  the  Pluto,  that 
her  engine  had  not  been  stopped. 

Sixth.  That  at  the  time  when  the  danger  of  a  collision 
between  the  said  vessels  was  first  perceived,  as  aforesaid, 
from  the  Edith,  it  was  impossible  for  her  to  get  out  of  the 
way  of  the  said  Pluto;  nor  were  there  any  means  to  which 
she  could  with  propriety  have  resorted  for  that  purpose. 

Seventh.     That  the  said  schooner  was  of  the  value  of 

dollars,  and  the  said  cargo  was  of  the  value  of dollars, 

or  thereabouts ;  and  that  by  reason  of  the  careless,  negligent, 
and  unskillful  and  improper  management  of  the  said  steam- 
boat Pluto,  and  of  the  collision  thereby  occasioned  of  the 
said  Steamboat  with  the  said  schooner  Edith,  the  libellant 

has   sustained  damages   to  the   amount  of dollars,  or 

thereabouts,  for  which  he  claims  reparation  in  this  suit. 

Eighth.  That,  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  of  this  honorable  court. 

Wherefore  the  libellant  prays  that  process  in  due  form  of 
law  may  issue  against  the  said  steamboat,  her  engine,  ma- 
chinery, boats,  tackle,  apparel,  and  furniture ;  and  that  this 
honorable  court  will  pronounce  for  the  damages  aforesaid, 
and  decree  the  same  to  be  paid  with  costs,  and  for  such  other 
and  further  relief  and  redress  as  to  right  and  justice  may  ap- 
pertain, and  the  court  is  competent  to  give  in  the  premises. 

X.  &  X.,  A.  B. 

Proctors. 

R.  X., 
Advocate. 

\yerification.     See  No.  585  et  seq^ 


LIBELS   IN   REM.  531 

No.  555. 

Insurers  for  Loss  by  Collision. 

[  Title^  address^  and  introductioHy  as  in  Form  537,  and  con- 
tinue as  follows  :'\ 

First.  At  all  times  hereinafter  mentioned  the  libellants 
were  underwriters, 'and  lawfully  engaged  in  and  transacting 
the  business  of  marine  insurance  in  London,  England. 

Second.     vOn  or  about  the day  of ,  1894,  the  firm 

of  R.  &  Co.,  merchants,  of  the  city  of ,  shipped,  in  good 

order  and  condition,  on  board  the  steamer  X.,  then  lying  in 
the  port  of ,  and  bound  to  the  port  of ,  to  be  trans- 
ported in  said  steamer  to  said  port  of ,    tubs  of 

butter, of  which  were  marked  "A", of  which  were 

marked  "  B,"  and of   which  were  marked   "  C,"    and 

which  tubs  of  butter  the  agents  of  said  steamer  X.  did  agree 

to  transport  to  and  deliver  at by  the  said  steamer  X.,  to 

the  order  of  the  shipper,  and  at  the  time  aforesaid  did  issue  a 
bill  of  lading  in  accordance  with  sueh  agreement.  Said  goods 
-were  shipped  by  R.  &  Co.,  for  joint  account  with  G.  &  Co.,  of 

,  and  were  owned  by  the  said  R.  &  Co.  and  the  said  G.  & 

Co.  jointly,  and  after  said  shipment,  the  bill  of  lading  issued 
as  aforesaid  therefor  was  duly  indorsed  by  said  R.  &  Co.,  and 
delivered  to  said  G.  &  Co. 

Third.     On  or  about  the day  of ,  1894,  the  firm 

of  M.  &  S.,  merchants,  of  the  city  of ,  shipped  in  good 

•order  and  condition  on  board  the  steamer  X.,  to  be  transport- 
ed in  said  steamer  from  the  port  of to  the  port  of , 

boxes  of  cheese,  of  which  were  marked  (F)  17, 

—  of  which  were  marked  (F)  18,  and of  which  were 


marked  (F)  19,  and  which  boxes  of  cheese  the  agents  of  said 

steamer  did  agree  to  transport  to  and  deliver  at ,  to  the 

order  of  the  shippers,  and  at  the  time  aforesaid  did  issue  a 
bill  of  lading  in  accordance  with  such  agreement.  Said 
goods  were  shipped  by  said  M.  &  S.  for  account  of  the  firm 
of  G.  &  Co.,  of ,  who  were  and  continued  to  be  the  own- 
ers of  said  goods,  and  after  said  shipment  said   bill  of  lading 


532  •  ADMIRALTY. 

issued  as  aforesaid  therefor  was  duly  indorsed  by  M.  &  S. 
and  delivered  to  said  G.  &  Co. 

Fourth.     On  or  about  the day  of ,  1894,  the  said 

steamer  X.  set  sail  from  the  port  of ,  bound  for  the  port 

of ,  having  on  board  both  the  aforesaid  lots  of  merchan- 
dise, which  had  been  shipped  on  board  said  steamer  at  said 

port  of ,  in  good  order  and  condition,  and  at  about  half-past 

one  o'clock  in  the  afternoon  of  the day  of ,  1894, 

the  said  steamer  X.,  when  about miles  east  of ,  came 

into  violent  collision  with  said  steamer  Y.,  and  by  said  collis- 
ion a  large  hole  was  made  in  the  starboard  side  of  the  steamer 
X.,  by  reason  whereof  the  compartments  in  which  the  above- 
mentioned  lots  of  merchandise  were  stowed  were  flooded, 
and  the  said  lots  of  merchandise  were  wholly  lost  to  the  own- 
ers, most  of  them  being  lost  through  said  hole  to  the  sea,  and 
the  others  being  jettisoned. 

Fifth.     On  or  about  the day  of ,  1894,  the  libel- 

lants,  in  the  regular  course  of  their  business  as  marine  insurers, 
issued  to  D.  &  W.,  for  and  in  consideration  of  the  premiums 

paid,  an  open  policy  of  insurance  in  the  sum  of pounds, 

British  sterling,  bearing  date  of  the day  of ,  1894, 

and  in  and  by  said  policy  of  insurance  the  libellants  agreed 
to  insure  said  D.  &  W.  as  well  in  their  own  name  and  names 
of  every  other  person  or  persons  to  whom  the  same  did, 
might  or  should  appertain  in  part  or  in  whole,  and  did  cause 
them  and  each  of  such  persons  to  be  insured  at  and  from 

and  (or) and  (or) and  (or) to and 

(or)  port  or  ports,  place  or  places,  on  the  west  coast  of  Great 
Britain,  upon  any  kind  of  goods  and  merchandise  against 
loss  or  damage  arising  from  adventures  and  perils  of  the  sea, 
and  all  other  perils,  loss,  and  misfortunes  that  might  come  to 
the  hurt,  detriment,  or  damage  of  said  goods  upon  the  voyage ; 
that,  by  the  terms  of  said  policy  of  insurance,  the  libellants, 

A.  B.  and  S.  B.,  each  became  insurer  in  the  sum  of 

pounds  British  sterling,  of  said pounds  British  sterling, 

which  was  the  total  sum  covered  by  said  policy,  and  the 
other  libellants  each  became  insurer  to  the  extent  of 


LIBELS   IN    REM.  533 

pounds  Britisli  sterling,  and  the  libellants  agreed  to  become 
insurers  in  such  proportions  upon  any  shipment  declared 
under  the  said  policy  of  insurance ;  that  thereafter,  and  in  the 

month  of ,  1894,  D.  &  W.  declared  insurance  upon  said 

lot  of tubs  of  butter  to  the  amount  of pounds  of 

British  sterling,  for  the  benefit  of  the  owners  of  the  said  tubs 
of  butter,  and  they  further  declared  insurance  upon  said  lot 

of boxes  of  cheese  in  the  sum  of pounds  British 

sterling,  for  the  benefit  of  the  owners  of  said  boxes  of  cheese, 
and  the  said  insurance  was  accepted  and  indorsed  by  and 
for  the  libellants  upon  said  policy,  said  sums  insured  being 
only  equal  or  less  than  the  true  value  of  said  goods. 

Sixth.  The  aforesaid  collision  occurred  as  follows :  The 
X.,  up  to  within  a  very  short  time  before  the  collision,  was 

proceeding  on  an  easterly  course  at  the  rate  of miles  an 

hour,  which  speed  she  maintained  until  the  collision ;  and 
the  said  steamer  Y.,  up  to  within  a  very  short  time  before 
the  collision,    was  proceeding  on   a   west  by  north  course, 

bound  from to ,  at  a  high  rate  of  speed ;   the  sea 

was  smooth,  and  there  was  little  wind,  but  there  was  a  dense 
fog,  in  which  the  said  steamers  had  been  running  for  a  long 
time  before  the  collision ;  neither  vessels  had  sufficient 
lookouts;  both  vessels  were  giving  at  intervals  signals  with 
their  steam  whistles.  While  so  proceeding,  the  oflB.cers  of 
the  steamer  Y.  heard  the  fog  signal  of  the  X.  over  the  port 
bow  of  their  vessel,  and  gave  orders  to  the  man  at  the  wheel 
to  port,  which  order  was  executed ;  and  the  officers  of  the 
X.  heard  the  fog  signal  of  the  steamer  Y.  over  the  starboard 
bow  of  their  vessel,  and  gave  orders  to  the  man  at  the 
wheel  to  starboard,  which  order  was  executed.  A  few  min- 
utes later  each  steamer  became  visible  to  those  on  board  of 
the  other  steamer,  close  at  hand  ;  whereupon  those  in  charge 
of  the  steamer  Y.  ordered  her  engines  to  be  stopped  and  re- 
versed, but  before  any  perceptible  influence  was  exerted  on 
the  speed  of  the  steamer  the  two  vessels  came  into  collision. 

Seventh.  The  collision  was  due  to  the  fault  and  negli- 
gence of  those  in  charge  of  the  steamers  X.  and  Y.,  respec- 


534  ADMIRALTY. 

tively,  in  that  they  were  proceeding  at  too  high  a  rate  of 
speed,  in  that  they  had  no  good  and  sufficient  lookouts  ;  in 
that  they  did  not  give  the  proper  signals  by  which  to  indi- 
cate each  to  the  other  their  respective  courses  and  move- 
ments ;  in  that  they  did  not  heed  and  note  the  signals  given 
by  the  approaching  vessel ;  and  in  that  they  did  not  stop  and 
reverse  their  engines  before  the  collision  and  at  such  time  as 
to  overcome  their  headway ;  and  to  the  fault  of  those  in 
charge  of  the  navigation  of  the  steamer  Y.,  in  that  they 
ported  their  helm  and  did  not  hold  their  course,  and  to  the 
fault  of  those  in  charge  of  the  navigation  of  said  steamer  X., 
in  that  they  starboarded  their  helm  instead  of  porting ;  and 
the  said  collision  was  not  in  any  respect  due  to  the  fault  of 
the  libellants. 

Eighth.  By  reason  of  the  premises  and  the  collision 
aforesaid,  and  the  resultant  loss  and  destruction  of  said 
lots  of  merchandise,  the  libellants,  as  insurers,  as  aforesaid, 

became   liable  to  pay,  and  have  paid  on  or  about   the 

day  of ,  1894,  to  the  said  G.  &  Co.,  for  the  loss,  as  afore- 
said, for  said tubs  of  butter,  the  sum  of pounds 

British  sterling,  and  for  the  loss  and  destruction  of  said 

boxes  of  cheese,  as  aforesaid,  the  further  sum  of pounds 

British  sterling,  and  have  become  subrogated  to  all  the  rights 
of  the  owners  of  said  merchandise,  and  that  they  have  re- 
ceived the  sum  of pounds  British  sterling,  being  allow- 
ances in  general  average  for  goods  jettisoned. 

Ninth.  By  reason  of  the  premises  and  the  payment  afore- 
said, the  libellants  have  sustained  damages  in   the  sum  of 

pounds  British  sterling,  equivalent  in  money   of   the 

United  States  to dollars,  with  interest  thereon  from  the 

day  of ,  1894,  no    part   of  which   has  been    paid, 

although  payment  thereof  has  been  duly  demanded  by  the 
libellants. 

Tenth.  Said  steamers  X.  and  Y.  are  now  within  this 
district  and  within  the  jurisdiction  of  this  court. 

Eleventh.  [Conclude  with  the  last  article^  prayer^  etc. ^  as 
in  No.  537.] 


LIBELS   IN   PERSONAM.  535 


LIBELS  IN  PERSONAM  AND  IN  REM  AND 
PERSONAM. 

No.  556. 

Libel  in  Personam. 

The  District  Court  of  the  United  States  "I  ,     a  j    •    1^ 
for  the District  of .  |  ^^  Admiralty. 

To  the  Hon.  G.  W.,  Judge  of  the  District  Court  of  the 
United  States  in  and  for  the District  of : 

A.  B.,  [occupation]^  of  the  city  of ,  state  of ,  brings 

this,  his  libel,  against  L.  M.,  [occupation]^  of  the  city  of , 

owner  of  the  ship  \or^  schooner,  etc?] ,  whereof  the  said 

C.  D.  is,  or  lately  was,  master,  \or^  against  C.  D.,  now,  or  lately, 
master,  etc.^  or  as  may  de],  in  a  cause  of  contract  [or  as  may 
be\  civil  and  maritime,  and  the  said  libellant  alleges  and 
propounds  as  follows: 

[Here  state  the  allegations  of  fact  in  numbered  articles^  the 
last  article  being  as  follows ;] 

That  all  and  singular  the  premises  are  true,  and  within 
the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
and  this  honorable  court. 

Wherefore  the  libellant  prays  that  a  warrant  of  arrest  (i), 
in  due  form  of  law,  according  to  the  course  of  this  honorable 
court  in  cases  of  admiralty  and  maritime  jurisdiction,  may 
issue  against  the  said  L.  M.,  and  that  he  may  be  cited  to 
appear  and  answer  all  and  singular  the  matters  aforesaid, 
and  that  this  honorable  court  would  be  pleased  to  decree  to 
the  libellant  the  said  amount  due  to  libellant  on  his  contract 
[or  whatever  the  case  may  require]  aforesaid,  with  interest  and 


53^  ADMIRALTY. 

costs,  and  that  the  libellant  may  have  such  other  and  further 
relief  as  in  law  and  justice  he  may  be  entitled  to  receive. 
X.  &  X.,  A.  B. 

Proctors. 
R.  X., 

Advocate. 
[  Verification.     See  No.  585  et  seg."] 
(i)  See  2d  Rule  in  Admiralty. 


No.  557. 

Same,  with  Prayer  for  Attachment  of  Goods,  etc. 

[Proceed  as  in  No.  556,  to  the  prayer.,  and  continue  as  fol- 
lowsi] 

Wherefore  the  libellant  prays  that  a  warrant  of  arrest  (i), 
in  due  form  of  law,  according  to  the  course  of  this  honorable 
court  in  cases  of  admiralty  and  maritime  jurisdiction,  may 
be  issued  against  the  said  L.  M.,  and  that  he  may  be  cited  to 
appear  and  answer  all  and  singular  the  matters  aforesaid,  and 
that  if  he  can  not  be  found,  then  that  his  goods  and  chattels 
in  this  district  may  be  attached  to  sufficient  amount  to  an- 
swer the  libellant,  and  if  sufficient  goods  and  chattels  can 
not  be  found  in  this  district,  then  that  his  credits  and  effects 

in  the  hands  of  O.  P.,  merchant  [or  as  may  be\  of ,  may 

be  attached  to  a  sufficient  amount  to  answer  the  libellant, 
and  that  the  said  O.  P.  may  be  cited  to  appear  and  answer 
such  interrogatories  as  may  be  propounded  to  him  by  the 
libellant,  and  that  this  honorable  court  would  be  pleased  to 
decree  to  the  libellant  all  the  said  amount  due  to  the  libel- 
lant on  his  contract  [or  whatever  the  case  may  require'\  afore- 
said, with  interest  and  costs,  and  that  the  libellant  may  have 
such  other  and  further  relief  as  in  law  and  justice  he  may 
be  entitled  to  receive. 

[Sign^  etc.,  as  in  No.  556.] 

(i)  A  simple  monition  in  the  nature  of  a  summons,  instead  of  a 
warrant  of  arrest,  may  issue.     See  2d  Rule  in  Admiralty. 


WBELS   IN    PERSONAM.  537 

No.  558. 

Same,  with  Prayer  for  a  Monition. 

[Proceed  as  in  No.  556,  to  the  prayer.,  and  continue  as  fol- 
lows ;] 

Wherefore  the  Hbellant  prays  that  process  of  monition  (i), 
in  due  form  of  law  according  to  the  course  of  this  honorable 
court  in  cases  of  admiralty  and  maritime  jurisdiction,  may 
issue  against  the  said  L.  M.,  and  that  he  may  be  cited  to 

appear  before  this  honorable  court  on  the day  of , 

or  such  other  day,  to  be  inserted  in  the  said  monition,  as  the 
court  shall  direct,  then  and  there  to  answer  the  Hbellant  in 
the  premises,  and  that  this  honorable  court  would  be  pleased 
to  decree  to  the  libellant  the  payment  of  the  said  amount 
due  to  libellant  on  his  contract  \or  whatever  the  case  may  re- 
quire\  aforesaid,  with  interest  and  costs,  and  that  the  libel- 
lant may  have  such  other  and  further  relief  as  in  law  and 
justice  he  may  be  entitled  to  receive. 

\Sign.,  etc.,  as  in  No.  556.] 

(i)  See  2d  Rule  in  Admiralty. 

No.  559. 

Interrogatory  Clause  in  Prayer. 

\If  the  libellant  puts  interrogatoi-ies  (i),  they  should  be  added 
after  the  verification.,  and  entitled  *''•  Interrogatories  Referred  to 
in  the  Foregoing  Libel ^"^  and  a  clause  should  be  added  at  the  end 
of  the  prayer  as  follows P^ 

''And  further,  that  the  said  L.  M.,  or  other  person  or  per- 
sons, intervening  for  his  or  their  interests,  may  be  required 
to  answer  the  interrogatories  hereto  annexed." 

(i)  See  23d  Rule  in  Admiralty. 


538  ADMIRALTY. 

No.  560. 

For  Compensation  by  a  Superintendent   for   the  Building 

of  a  Ship. 

[Proceed  with  title ^  address,  and  introduction,  as  in  No.  556, 
omitting  "  whereof  the  said  C.  D.  is,  or  lately  was,  master," 
and  continue  as  follows ;] 

First.     That  on  or  about  the day  of ,  1894,  the 

said  libellant  was  employed  by  L.  M.,  of  the  city  of , 

to  purchase  materials,  employ  mechanics,  and  direct  and 
superintend  the  building  of  a  certain   schooner  in  the  city 

of ,  the  funds  to  be  furnished  and  payments  made  by 

the  said  L.  M.,  for  the  salary  or  wages  of dollars,  for 

the  time  between  the  laying  of  the  keel  and  the  launching 
of  the  said  ship. 

Second.  That  the  libellant  immediately  began  his  duties 
under  said  contract,  and  proceeded  without  delay  to  perform 

his  duties;  and  the  keel  of  said  vessel  was  laid  on  the 

day  of ,  1894,  and  the  work  has  proceeded  with  all  prac- 
tical dispatch,  and  the  said  vessel  would  have  been  ready  to 

be  launched  on  the  first  day  of ,  1894,  had  the  necessary 

funds  been  supplied  to  make  the  necessary  payments  and 
complete  the  work. 

Third.     That  the  said  vessel  is  still  unfinished,  and  has 

not  yet  received  a  name,  and  is  intended  to  be  of  about 

tons  bnrden. 

Fourth.     That  on  or  about  the day  of ,  1894,  the 

said  Iv.  M.  sold  the  said  unfinished  vessel  to  one  O.  P.,  of 

the  city  of ,  subject  to  the  payments  of  the  libellant,  and 

thereafter  refused  io  furnish  funds  to  make  the  necessary 
payments,  and  the  said  O.  P.  declines  to  proceed  with  the 
construction  of  the  said  vessel,  and  discharged  the  libellant. 

Fifth.     That  there  is  due,  and  wholly  unpaid,  the  whole 

of  his  said  compensation,  amounting  to dollars,  besides 

interest. 

Sixth.  [Proceed  with  the  last  article,  prayer,  etc.,  as  in 
^^-  55^)  ^''  557)  ^^  558)  according  to  the  relief  desired^ 


LIBELS   IN    PERSONAM.  .     539 

No.  561. 

For  Supplies  (i). 

[Proceed  with  title^  address^  and  introduction^  as  in  No^ 
556,  and  continue  cls  follows ;] 

First.     That  on  or  about  the day  of ,  1894,  the 

said  vessel ,  then  lying  at  the  port  of ,  and  owned  . 

by  the  said  L.  M.,  was  a  maritime  vessel  employed  in  navi- 
gating the  high  seas,  and  standing  in  need  of  provisions  and 
stores,  the  libellant,  at  the  request  of  C.  D.,  the  master,  fur- 
nished to  and  for  the  said  vessel  the  provisions  and  stores 
contained  in  the  schedule  hereto  annexed,  amounting  to  the 

sum  of dollars,  and  that  the  same  were  furnished  at  the 

prices  stated  in  the  said  schedule,  which  said  prices  are  rea- 
sonable. 

Second.  That  the  said  provisions  and  stores  were  neces- 
sary to  enable  the  said  vessel  to  perform  her  intended  voyage 
or  voyages,  and  were  furnished  on  the  credit  of  the  said  ves- 
sel, as  well  as  of  the  master  and  owner  thereof. 

Third.  That  the  said  owner  or  master  has  not  paid  to  the 
libellant  the  said  sum  of dollars,  or  any  part  thereof,  al- 
though often  requested  so  to  do,  and  the  same  remains 
wholly  unpaid   and    due,    together    with  interest    thereon, 

amounting  to dollars,   amounting    in  the  aggregate  to 

dollars,  which  is  now  justly  due  and  owing  to  the  li- 
bellant.    [Conclude  as  in  No.  556.] 

( !  ^  Sec  brig  Nestor,  i  Sam.73 ;  and  Desty's  Fed.  Proc.,  1206,  and  cases 
cited. 


No.  562. 

For  Supplies  with  Attachment  Clause. 

[Proceed  as  in  No.  561,  inserting  as  article  ^th  the  follow- 
ing :'\ 

Fourth.  That  the  libellant  is  informed  and  believes  that 
the  respondent  has  credits  and  eflfects  in  the  hands  of  O.  P.^ 
of  the  city  of . 

Fifth.     [Conclude  as  in  No.  557,  aTid  attach  schedule^ 


540  ADMIRALTY. 

No.  563. 
Against  Owner  for  Wages. 

[Proceed  with  title,  address,  and  introduction,  as  in  No.  556, 
and  continiie  with  statement  of  facts.  The  pleader  will  find 
in  No.  539  sufficient  guide  in  this  respect?^ 

[Conclude  as  in  No.  556,  or  557,  or  558,  according  to  the  re- 
lief desired,  and  attcLch  schedule,  for  form  of  which  see  No. 
540.] 

No.  564. 

Against  a  Consignee  for  Freight  on  a  Bill  of  Lading. 

[  Title  and  address^ 

A.  B.,  [occupation'],  of  the  city  of ,  owner  of  the  brig 

[or,  etc.,]  her  tackle,  apparel,  and  furniture,  brings  this  his  libel 

against  L.  M.,  [occupation],  of  the  city  of ,  in  a  cause  of 

contract,  civil  and  maritime,  and  said  libellant  alleges  and 
propounds  as  follows : 

Tirst.  That  at  the  time  hereinafter  mentioned  the  libel- 
lant was,  and  still  is,  the  owner  of  the  brig ,  and  that  C. 

D.  was  then  the  master  thereof. 

Second.     That   the   said   brig,  about   the   middle   of  the 

month  of  October,  1893,  was  lying  in  the  port  of ,  and 

destined  on  a  voyage  thence  to  the  port  of ;  G.  H.  then 

shipped  on  board  the  said  vessel barrels  of  flour,  the 

contents  and  weight  thereof  being  unknown,  to  be  therein 

carried  from  the  said  port  of to  the  said  port  of , 

and  there  to  be  delivered  in  like  good  order,  as  they  were  re- 
ceived, the  dangers  of  the  seas  only  excepted,  to  the  respond- 
ent, L.  M.,  or  to  his  assigns,  the  freight  for  the  same,  at  the 

rate  of dollars  per  barrel,  to  be  paid  by  the  said  L.  M., 

or  his  assigns,  and  accordingly  the  said  C.  D.,  master,  at  the 

port  of ,  on  the day  of  October,  1893,  affirmed  to 

the  usual  bills  of  lading,  and  delivered  the  same  to  the  ship- 
pers, all  the  said  cargo,  a  copy  of  which  bills  of  lading  is 
hereto  annexed,  marked  schedule  "A." 


LIBELS   IN    PERSONAM.  54I 

Third.     That  the  said  vessel,  with  the  said  cargo  on  boards 

soon  after  set  sail  from ,  and  in  due  time  safely  arrived 

at  the  port  of ,  her  destination,  and  the  said  flour  was 

duly  delivered  to  the  said  L.  M.,  and  so  accepted  and  re- 
ceived by  him. 

Fourth.  That  by  reason  of  the  premises,  the  said  L.  M. 
!  became  bound  to  pay  to  the  libellant  the  freight  for  the  said 

merchandise,  amounting  to  the  sum  of dollars,  and  is 

more  particularly  set  forth  in  the  schedule  hereto  annexed, 
and  marked  schedule  "  B." 

Fifth.  That  the  said  L.  M.  has  refused,  and  still  refuses, 
to  pay  the  freight  aforesaid,  although  often  requested  so  to 
do,  notwithstanding  he  has  accepted  and  received  the  said 
merchandise,  and  that  in  like  good  order  and  condition,  as  it 

was  shipped ;  the  said  sum  of dollars,  with  interest,  is 

now  due  the  libellant  for  the  freight  on  said  merchandise, 
and  is  wholly  unpaid. 

Sixth.  [^Conclude  as  in  No.  556,  or  557,  or  558,  according 
to  the  relief  desired^  and  attach  bill  of  lading .^  marked  schedule 
"y^,"  also  bill  for  freight.,  marked  schedule  "j9."] 


No.  565. 

For  Wharfage. 

[Proceed  imth  title^  address^  and  introduction^  as  in  No.  556, 
and  continue  with  articles  i,  2,  3,  4,  5,  and  6,  as  in  No.  538,  and 
in  place  of  ''^2,  foreign  vessel,"  insert  "a  domestic  vessel, 
owned  and  commanded  by  the  said ,  of ."] 

[Conclude  as  hi  No.  556,  or  557,  or  558,  according  to  the 
relief  desired.^ 


542  ADMIRALTY. 

No.  566. 
For  Lockage  in  a  Public  Navigable  River  (i). 

\Proceed  with  title^  address^  and  introduction^  as  in  No  556, 
and  continue  as  follows:  ] 

First.     That  the  libellant  is,  or  was  at  the  time  hereinafter 

mentioned,  the  owner  of  certain  locks  in  and  upon  the 

canal  and  waterway  connecting  with  and  necessary  to  the 
continuous  navigation  of  the river,  and  that  he  is  en- 
titled by  law  to  charge  and  receive  certain  tolls  for  vessels 
-and  their  tows,  passing  through  and  using  the  said  locks. 

Second,  That  the  said  L.  M.  is,  and  was  at  the  time  here- 
inafter mentioned,  the  owner  of  the  steam  tug ,  belong- 
ing to  and  licensed  and  enrolled  at  the  port  of ,  and  that 

C.  D.  was  then  master  of  the  said  steam  tug. 

Third.  That  the  said  steam  tug,  with  certain  barges  in 
tow,  passed  through  and  used  the  locks  of  said  libellant,  on 

her  voyages  during  the  months  of and ,  1893,  ^^  ^^^ 

navigation  of  the  said  canal  and  river,  and  that  there  is  due 
from  said  steam  tug  and  tow,  for  such  use  of  the  said  locks, 

the  amount  of dollars;  the  times,  rates  of  toll,  and  other 

particulars  are  set  forth  in  a  schedule  hereto  annexed,  and 
made  part  hereof,  and  marked  schedule  "A." 

Fourth.  That,  according  to  the  custom,  it  was  the  duty  of 
the  said  owner  or  master  of  the  said  steam  tug  to  pay  tolls 
both  for  herself  and  for  the  barges  which  she  had  in  tow, 
and  that  the  charges  made  for  the  said  tolls  are  reasonable 
and  proper,  and  the  use  of  the  said  locks  was  necessary  to 
the  navigation  of  the  river  and  canal  by  the  said  tug  and  her 
tows,  in  the  prosecution  of  her  business. 

Fifth.  That  the  owner  or  master  of  the  said  vessel  has 
hitherto  wholly  refused  and  still  refuses  to  pay  the  aforesaid 
sum  of dollars,  or  any  part  thereof,  although  often  re- 
quested so  to  do. 

Sixth.  [Conclude  with  the  last  article^  prayer^  etc.,  as  in 
^o.  556,  or  557,  or  558,  according  to  the  relief  desired^ 

(i)   See  the  "Bob  Connell,"  1  Fed  Rep.,  218. 


LIBELS    IN    PERSONAM.  543 

No.  567. 

Against  a  Master  for  Assault,  and  Beating,  or  Imprison- 
ment. 

[  Title  and  address.^ 

A.   B.,  of ,  late  mariner  on  board  the  ship  \or^  e/c.'] 

,  whereof  C.  D.,  of ,  is,  or  lately  was,  master,  brings 

this  his  libel  against  the  said  C.  D.,  in  a  cause  of  damage, 
civil  and  maritime,  and  the  said  libellant  alleges  and  pro- 
pounds as  follows: 

First.     That  on  or  about  the  day  of  ,  at  the 

port  of ,  the  said  ship ,  whereof  the  said  CD.  was 

master,  then  being  at  the  port  of ,  and  destined  on  a 

voyage  from  the  said  port  of to ,  and  thence  back 

to  the  port  of ,  the  libellant  shipped  to  serve  as  a  mariner 

on  board  the  said  ship  during  the  said  voyage;  that  the  said 
ship  soon  thereafter  proceeded  upon  the  said  voyage  with 
the  libellant  on  board,  and  in  due  time  completed  the  same ; 
and  that  during  the  whole  of  the  said  voyage  the  libellant  did 
well  and  truly  perform  his  duty  on  board  the  said  ship  as 
such  mariner,  and  was  obedient  to  all  the  lawful  commands  of 
the  said  master  and  other  officers  on  board  the  said  ship. 

Second.     That  during  the  said  voyage,  to  wit,  on  or  about 

the day  of ,   the  libellant  having  the  day  before 

been  accidentally  hit  by  the  jib-sheet  block  on  his  right  arm, 
which  became  thereby  so  severely  hurt  and  lamed  as  almost 
wholly  to  deprive  him  of  the  use  thereof,  insomuch  that  he 
could  not  move  his  arm  at  all  without  excruciating  pain,  the 
said  CD.  well  knowing  that  the  libellant  had  received  the 
aforesaid  injury,  and  had  thereby  become  disabled  as  afore- 
said, ordered  the  libellant  to  go  aloft  and  assist  in  shortening 
the  sail ;  the  libellant  respectfully  told  the  said  C  D.  that  it 
was  impossible  for  him  to  obey  the  said  order;  whereupon 
the  said  C  D.  immediately  knocked  the  libellant  down  by  a 
violent  blow  with  his  clenched  fist  upon  the  head  of  the 
libellant,  and  with  great  force  and  violence  kicked  him 
several  times,  and  once  upon  his  arm  while  he  lay  upon  the 
deck,  whereby  he  was  greatly  hurt  and  bruised. 


544  ♦  ADMIRALTY. 

Third.  That  afterwards,  during  the  said  voyage,  to  wit, 
on  or  about  the day  of ,  \here  allege  any  other  as- 
sault or  beatings  or  any  imprisonment^  which  may  have  been 
inflicted  by  the  defendant  upon  the  libellant^  and  of  which  he 
sees  fit  to  complain ;  and  if  more  than  two  injuries  of  this 
nature  have  been  so  inflicted^  they  may  also  severally  be  alleged 
in  separate  successive  articles^ 

Fourth.  That  by  reason  of  the  wanton  cruelty  and  unlaw- 
ful violence  to  which  the  libellant  has  been  subjected  by  the 
said  C.  D.,  as  hereinbefore  alleged  and  set  forth,  the  libellant 
has  suffered  great  pain  and  distress  \and  if  the  fact  be  so^  then 
add^  and  his  health  was  thereby  greatly  impaired,  or,  was 
and  still  is  thereby  greatly  impaired],  and  he  has  been  dam- 
nified to  the  amount  of dollars. 

Fifth.  \Conclude  with  last  article.,  prayer^  etc.,  as  in  Nos. 
556,  or  557,  or  558,  according  to  the  relief  desired^  inserting 
in  the  prayer  ^'■for  the  damages  aforesaid^''  etc^ 


No.  568. 

To  Enforce  Decree  of  Court  of  Admiralty  of  another 

District. 

[Proceed  with  title ^  address^  and  introduction^  as  in  No.  556, 
in  *M  Cause  of  Contract  and  Judgment  and  Decree^''  and 
continue  as  follows  .•] 

First.     That  on  or  about  the day  of ,  1893,  ^^^ 

said  libellant  filed  his  libel  in  the  district  court  of  the  United 

States  for   the district  of ,  against  the  said  L.  M., 

to   recover  the   sum   of dollars    for  necessary  supplies 

furnished  by  the  said  libellant  to  the  said  vessel,  owned  by 

the  said  L.  M.,  while  lying  in  the  port  of ,  and  issue  was 

joined  in  the  said  cause,  and  the  case  coming  on  to  be  heard 
upon  the   pleadings  and  proofs,  it  was  decreed  by  the  said 

district  court  for  the district  of that  the  said  L.  M. 

pay   to  the  libellant  the  sum  of dollars  with  interest 


LIBELS    IN    REM   AND    PERSONAM.  545 

from   tlie  day   of ,  and  costs,    a  certified  copy  of 

which  decree  is  hereto  annexed  and  made  part  hereof,  and 
marked  exhibit  "A." 

Second.  That  the  said  decree  still  remains  in  full  force 
and  effect,  and  has  not  been  modified,  vacated,  annulled,  ap- 
pealed from,  or  satisfied  in  whole  or  in  part. 

Third.     That  the  said   sum   of dollars,  decreed  as 

aforesaid,  together  with  interest  thereon  from  the day 

of ,  and  the  costs  therein  taxed  at dollars,  amount- 
ing in  all  to  the  sum  of dollars,  has  not  been  paid,  nor 

any  part  thereof,  and  still  remains  due  and  unpaid. 

Fourth.  That  the  said  L.  M.  can  not  be  found  within  the 
jurisdiction  of  the  said  district  court  of  the  United  States  for 

the district  of ,  nor  can  any  goods,  chattels,  rights, 

credits,  effects,  lands,  or  tenements  be  found  within  the  jur- 
isdiction of  the  said  court  out  of  which  to  satisfy  the  said 
decree,  or  any  part  thereof. 

Fifth.  [Conclude  with  last  article,  prayer,  etc.,  as  in  Nos. 
556,  or  557,  or  558,  according  to  the  relief  desired^ 


No.  569. 

General  Form  of  Libel  in  Rem  and  Personam  (i). 

The  District  Court  of  the  United  States,    \  ^     \a    ■    i^. 
for  the District  of .  |  ^^  Admiralty. 

To   the   Hon.  G.  W.,  Judge   of  the   District   Court   of  the 
United  States  in  and  for  the District  of : 


A.  B.,  [occupation^,  of  the  city  of ,  state  of ,  brings 

this  his  libel  against  the  ship  [brig,  tug,  etc^  [name  of  vessel '\, 
whereof  C.  D.  is  or  lately  was  master,  now  lying  in  port  at 
,  in  the  district  aforesaid,  her  tackle,  sails,  apparel,  fur- 
niture, boats,  and  appurtenances,  and  against  L.  M.,  [occupa- 
tion'], of ,  owner  [or,  the  said  C.  D.,  master]  of  said  ves- 
sel, and  all  persons  intervening  for  their  interest  in  said  ves- 
sel, in  a  cause  of  contract  [or,  as  may  be\  civil  and  maritime, 
and  the  said  libellant  alleges  and  propounds  as  follows : 


546  ADMIRALTY. 

[Proceed  as  in  No.  537,  and  in  the  prayer^  in  place  of  the 
words  "and  cargo  laden  therein,"  insert  "  the  said  L.  M."] 

(i)  Libels  in  rem  and  personam  can  be  joined  only  in  the  cases 
specified  in  the  Admiralty  Rules.  Aleda,  12  Fed.  Rep.,  343.  But  see 
City  of  Carlisle,  39  Fed.  Rep.,  897.  The  forms  given  for  libels  iyi  rem 
will  furnish  the  necessary  allegation  for  libels  in  rem  and  personam  in 
particular  cases. 


No.  570. 

Intervening  Libel  (i). 


The  District  Court  of  the  United  States, 
for  the District  of . 


\  In  Admiralty. 


To  the  Hon.  G.  W.,  Judge  of  the  District  Court  of  the 
United  States  in  and  for  the District  of : 

A.  B.,  [occupation']^  of  the  city  of ,  state  of ,  brings 

this  his  intervening  libel  against  the  ship  [or^  etc.],  whereof 
C.  D.  is  or  lately  was  master,  her  tackle,  sails,  apparel,  furni- 
ture, boats,  and  appurtenances,  and  against  all  persons  law- 
fully intervening  for  their  interest  therein,  in  a  cause  of  con- 
tract [or  as  may  be]  civil  and  maritime,  and  the  said  libellant 
alleges  and  propounds  as  follows : 

First.     That  the  said  vessel  is  now  at  the  port  of ,  in 

the  district  aforesaid,  and  is  in  the  custody  of  the  marshal 

of  the  United  States  for  the district  of ,  and  is  held 

upon  process  issued  out  of  this  honorable  court  at  the  suit  of 
,  number ,  which  said  action  is  still  pending. 

Second.  [Proceed  with  the  allegations  of  fact  in  the  num- 
bered articles  as  in  ''''Libels  in  Rem^''  and  conclude  with  the  fol- 
lowing prayer :] 

Wherefore  the  said  libellant  prays  that  he  may  be  permit- 
ted to  intervene  according  to  the  course  and  practice  of  the 
courts  of  admiralty  and  maritime  jurisdiction,  against  the 
said  [here  state  the  style  and  name  of  the  vessel],  her  tackle, 
sails,  apparel,  furniture,  boats,  and  appurtenances,  and  prose- 
cute same  jointly  with  the  said  [libellant  in  original suit\ 


LIBELS   IN   REM   AND   PERSONAM.  547 

and  that  ail  persons  having  or  pretending  to  have  any  right 
title,  or  interest,  may  be  cited  to  appear  and  answer  all  and 
lingular  the  matters  hereinbefore  set  forth,  and  that  this 
honorable  court  will  be  pleased  to  decree  the  payment  of  the 
amount  aforesaid,  and  also  to  condemn  and  sell  the  said 
vessel,  her  tackle,  sails,  apparel,  furniture,  boats,  and  other 
appurtenances,  to  pay  the  same,  with  costs,  and  for  such  other 
relief  as  may  be  proper  in  the  premises.  A.  B. 

X.  &  Y., 
Proctors. 

R.  X., 

Advocate. 

[  Verification.     See  No.  585  et  seq.  ] 

(1)  See  34th  Rule  in  Admiralty. 


No.  571. 

General  Form  for  Libel  of  Information  (i). 

^he  District  Court  of  the  United  States  \^     .  ,     .    ,, 
for  the District  of .  |  ^^  Admiralty. 

To  the  Hon.  G.  W.,  Judge  of  the  District  Court  of  the 
United  States  in  and  for  the District  of : 

J.  H.,  attorney  of  the  United  States  for  the  district 

of ,  who  prosecutes  for  the  said  United  States  in  this 

behalf,  and  being  present  here  in  court  in  his  own  proper 
person,  in  name  of  and  on  the  behalf  of  the  United  States 
brings  this  libel  of  information  against  the  steamboat  \etc. , 
as  may  be\.,  her  tackle,  engines,  boilers,  machinery,  sails,  ap- 
parel, furniture,  boats,  and  other  appurtenances,  in  a  cause 
of  seizure  \or  as  may  de\  and  alleges  and  informs  as  follows : 

[Here  state  the  grounds  for  the  libel  of  information  (2),  and 
continue  as  follows  {\ 

That  all  and  singular  the  premises  aforesaid  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 


548  ADMIRALTY. 

Wherefore  the  said  attorney  of  the  United  States,  on  be- 
half of  the  United  States,  prays  the  usual  process  and  moni- 
tion against  the  said  steamboat,  her  tackle,  engines,  boilers, 
machinery,  sails,  apparel,  furniture,  boats,  and  other  appur- 
tenances, in  this  behalf  to  be  made,  and  that  all  persons 
interested  therein  may  be  cited  to  appear  and  answer  the 
premises,  and  that  this  honorable  court  may  be  pleased  to 
decree  for  the  penalty  aforesaid,  and  that  the  said  vessel  may 
be  condemned  and  sold  to  pay  the  penalty  aforesaid,  with 
costs,  and  for  such  other  and  further  relief  as  shall  to  law 
and  justice  appertain.  J.  H., 

United  States  Attorney  for  the 
District  of . 

(i)  No  bond  or  stipulation  is  necessary.  Foster's  Fed.  Prac,  page 
852.     The  Antelope,  1 2  Wheat,  546. 

(2)  What  facts  need  be  alleged  in  a  libel  of  information,  see  22d 
Rule  in  Admiralty,  and  cases  cited  in  Desty's  Fed.  Proc.,  page  1213^ 
also,  The  Scotia,  39  Fed.  Rep.,  429. 


No.  572. 

Petition  for  Limitation  of  Liability. 

To  the  Honorable  G.  W.,  Judge  of  the  District  Court  of  the 
United  States  for  the District  of : 


The  libel  and  petition  of  the  T.  Steamship  Co.,  owner  of 
the  steamship  D.,  in  a  cause  of  action,  civil  and  maritime, 
respectfully  shows  : 

First.     Your  petitioner  is  a  corporation  duly  created  and 

organized  by  and  under  the  laws  of  the  kingdom  of , 

having  its  principal  office  at ,  and  owns  and  runs  a  line 

of  steamships  for  the  carriage  of  cargo  and  passengers  be- 
tween   ports  and  the  port  of ,  known  as  the  T.  line. 

At  the  times  hereinafter  mentioned  your  petitioner  was  the 
owner  of  said  steamship  D.,  which  was  engaged  in  the  busi- 
ness of  carriage  of  cargo  and  passengers  in  said  line  as  afore- 
said. 


LIBELS   IN   REM   AND   PERSONAM.  549 

Second.     On  the day  of ,  1894,  said  steamship  D., 

having  on  board  a  large  general  cargo  and  about passen- 
gers, and  being  fully  manned  with  a  large  and  competent 
crew,  under  command  of  an  experienced  master,  with  a  full 

corps  of  efficient  officers,  left  the  port  of ,  bound  on  a 

voyage  to ,  via  the  ports  of and .  After  touch- 
ing at  said  ports,  and  taking  on  more  passengers  and  cargo 

and  ship's  coals,  said  steamship  left for  ,  on  the 

day  of ,  1894,  passing on  the ,  and  through 

on  the  following  day,  whence  all  went  well  with  said 

vessel  until  the day  of ,  when  a  storm  came  up,  and 

for  two  days  the  vessel  labored  heavily  in  the  seas.     On  the 

morning  of  the the  high  seas  were  continued,  and  finally 

at o'clock  p.  m.,  when  in  latitude  46  28,  and  longitude 

40  6,  a  shock  was  felt  throughout  the  ship.  The  engines 
were  stopped  instantly,  and,  upon  investigation,  it  was  found 
that  the  stern  section  of  the  propeller  shaft  had  broken  in 
the  stem  tube,  and  that  at  the  same  time  the  stern  bulkhead 
was  broken  into  and  rivets  started,  letting  in  a  large  quan- 
tity of  water.  All  the  pumps  were  worked,  the  sails  set. 
The  pumps  were  kept  going,  but  were  unable  to  keep  the 
water  under  control.  The  pumps  were  worked  by  steam, 
and  the  other  compartments  of  the  vessel  kept  empty,  but 
the  water  continued  to  rise  in  the  engine-room.  A  portion 
of  the  cargo  was  jettisoned  without  avail.  The  water  in  the 
after  hold  rose  to  a  depth  of  three  feet.  The  sea  was  still 
high.  The  storm  continued,  and  the  steamer  labored  heav- 
ily, and  began  noticeably  to  settle  aft. 

Third.  At  daylight,  on  the day  of ,  the  steam- 
ship M.  was  sighted.  She  promptly  offered  assistance.  Her 
commander  undertook  to  tow  the   D.  to  the   nearest  land, 

which  was .     The  M.  accordingly  began  towing.     The 

leak  in  the  D.  increased  so  rapidly  that  at o'clock  a.  m. 

her  passengers  were  begun  to  be  transferred  to  the  M.,  which 
Was  concluded  at  4  p.  m.  The  captain  of  the  M.  then  de- 
clined to  tow  the  D.  longer,  after  the  passengers  had  been 


550  ADMIRALTY. 

transferred  ;  and,  as  the  leak  was  increasing,  the  captain  and 
crew  of  the  D.  were  compelled,  for  their  own  safety,  to  aban- 
don the  vessel,  which  was  done  ;  and  thereafter  said  vessel, 
together  with  all  her  tackle,  apparel,  boats,  and  appurtenances, 
has  become  a  total  loss,  and  no  freight  moneys  have  been 
earned,  paid,  or  received  therefrom. 

Said  accident  happened,  and  the  loss,  damage,  and  injury 
and  destruction  above  set  forth  were  occasioned,  done,  and 
incurred  without  fault,  or  privity,  or  knowledge  of  your  peti- 
tioner, and  without  fault  of  any  of  its  officers,  agents,  or  serv- 
ants, but  were  due  solely  to  the  perils  of  the  sea. 

Fourth.  Nevertheless,  certain  persons,  claiming  to  have 
been  passengers  on  said  vessel,  and  persons  claiming  to  have 
lost  passengers'  luggage  or  baggage  upon  the  D.,  have  al- 
ready brought  suit  against  your  petitioner,  and  other  suits 

are  threatened.     On  the day  of ,  1894,  one  X.  Y. 

commenced  an  action  against  your  petitioner  in  the  supreme 

court  of  the  state  of ,  for  the  city  and  county  of , 

within  the district  of ,  to  recover  damages  for  al- 
leged loss  or  destruction  of  luggage  upon  said  steamship ; 
and  said  action  is  still  pending,  the  plaintiff's  attorney  being 

R.  X.,  Esq.,  whose    office   is   at ,  in    the   city   of . 

Your  petitioner  desires  to  contest  its  liability  for  the  loss,  de- 
struction, damage,  and  injury  occasioned  by  said  accident, 
and  also  to  claim  the  benefit  of  the  limitation  of  liability 
provided  in  the  third  and  fourth  sections  of  the  act  of  con- 
gress entitled  "An  act  to  limit  the  liability  of  ship-owners, 
and  for  other  purposes,"  passed  March  3,  1851,  now  embodied 
in  Sections  4283  and  4285  of  the  Revised  Statutes  of  the 
United  States,  and  the  various  statutes  in  addition  thereto 
and  amendatory  thereof  [and  is  ready  and  willing  to  transfer 
any  interest,  or  spes  recuperandi^  in  the  steamship  D.,  for  the 
benefit  of  all  such  claimants  to  a  trustee  to  be  appointed  by 
this  honorable  court,  although,  as  this  petitioner  is  advised 
and  believes,  said  steamship  D.,  and  her  freight  moneys,  and 
her  tackle  and  apparel,  are  now,  and  have  been,  a  total  loss. 


LIBELS   IN    REM    AND   PERSONAM.  551 

Or,  in  case  of  an  appraisement  say,  "  And  to  that  end  desires 
an  appraisement  to  be  had  of  the  amount  or  value  of  its  in- 
terest in  said  steamship  in  the  condition  in  which  she  was 

after  said  accident  and  damage  on  ,  1894,  and  of  her 

freight  then  pending ;  and  for  that  purpose  your  petitioner 
asks  that  said  steamship  be  examined,  and  her  value  ascer- 
tained, by  a  commissioner  of  the  circuit  court,  or  by  such 
other  means  as  the  court  shall  direct]. 

Fifth.  Your  petitioner  further  states  the  facts  and  circum- 
stances by  reason  of  which  exception  from  liability  is  claimed 
as  follows,  in  addition  to  the  facts  hereinbefore  alleged: 

That  said  steamship  D.  was  in  all  respects  sound,  staunch, 
and  seaworthy,  and  properly  manned  and  equipped,  and  pro- 
vided for  the  voyage  in  which  she  was  engaged,  and  under 
the  command  of  proper  and  suitable  officers. 

That  said  accident  occurred  through  no  fault  or  negligence 
on  the  part  of  the  persons  on  board  of  or  having  charge  of 
the  navigation  of  the  said  steamship  D.,  but  was  wholly  due 
to  the  perils  of  the  seas,  the  severity  of  the  storm,  and  the 
action  of  the  elements  in  breaking  the  shaft  of  said  steamer 
within  the  stern  tube,  whereby  the  stern  bulkhead  was 
broken  and  started,  and  a  leak  was  made  so  that  it  became 
impossible  to  repair  her,  which  finally  caused  her  to  be 
abandoned  by  her  passengers,  officers,  and  crew. 

That  said  steamship  D.  has  not  been  libeled  or  arrested 
in  any  court  to  answer  for  said  loss  or  destruction,  but  that 

the  owners  have  been  sued  within  the district  of 

as  aforesaid. 

That  your  petitioner  is  ignorant  of  the  amount  of  the 
losses  and  injuries  suffered  by  the  several  freighters  and 
owners  of  merchandise  upon  said  voyage. 

Wherefore  your  petitioner  prays  that  this  honorable  court 
\in  case  of  appraisement,  say:  "will  be  pleased  to  cause 
due  appraisement  to  be  had  of  the  value  of  said  steamship 
D.  in  the  condition  in  which  she  was  immediately  after  said 
accident,  and  now  is,  and  upon  the  ascertainment  of  said 


552  ADMIRAIvTY. 

value  make  an  order  for  the  payment  thereof  into  court,  or 
for  the  giving  of  a  stipulation,  with  sureties  for  the  payment 
thereof  into  court  whenever  the  same  shall  be  ordered, 
and"]  will  issue  a  monition  against  all  persons  claiming 
damages  for  loss,  destruction,  damage,  or  injury  occasioned 
by  said  accident,  citing  them  to  appear  before  this  court 
and  make  due  proof  of  their  respective  claims,  at  a  time  to 
be  herein  named;  as  to  all  which  claims  your  petitioner 
will  contest  its  liability,  independently  of  the  limitation  of 
liability  claimed  under  act  and  statute  aforesaid. 

Also,  that  the  court  will  designate  a  commissioner  before 
whom  proof  of  all  claims  presented  in  pursuance  of  such 
monition  shall  be  made,  and  that,  upon  the  coming  in  of  the 
report  of  said  commissioner,  and  upon  the  hearing  of  the 
cause,  if  it  shall  appear  that  the  petitioner  is  not  liable  for 
such  loss,  damage,  destruction,  and  injury,  it  may  so  finally 
be  decreed  by  this  court.  And  that  in  the  meantime,  and 
until  the  final  judgment  of  the  court  shall  be  rendered  herein, 
this  court  will  make  an  order  restraining  the  further  prosecu- 
tion of  all  and  any  suit  or  suits  against  the  petitioner,  in  re- 
spect to  any  such  claim  or  claims,  particularly  by  the  said 
X.  Y.,  who  brought  suit  in  the  supreme  court  of  the  state  of 

,  as  hereinbefore  specified ;  and  the  petitioner  will  ever 

pray.  The  T.  Steamship  Co., 

R.  X.,  by  X.  &  X., 

Advocate.  Proctors. 

[^Verification.       See  No.  586.] 


No.  573. 

Petition  to  bring  in  Vessel  under  Rule  59  (i). 

To  the  Honorable  G.  W.,  Judge  of  the  District  Court  of  the 

United  States  for  the District  of : 

The  petition  of  J.  S.,  sole  owner  of  the  ship ,  against 

the  steam  tug ,  her  engines,  etc.,  and  against  all  persons 

claiming  any  interest  therein,  in  a  cause  of  collision,  civil 
and  maritime,  alleges  as  follows : 


LIBELS    IN    REM    AND    PERSONAM.  553 

First.  The  petitioner  was,  at  the  times  hereinafter  men- 
tioned and  is  now,  the  sole  owner  of  the  ship ,  which  is 

a   British  vessel    hailing  from ,  England,  of tons 

register,  and  was,  up  to  the  time  of  the  collision  hereinafter 
mentioned,  tight,  staunch,  and  strong,  and  in  every  way  sea- 
worthy. 

Second.  \Set  forth  facts  of  the  collision  between  the  ship 
,  iti  tow  of  tug  and  a  dredge  at  anchor^ 

Third.  Said  collision  was  not  caused  or  contributed  to  by 
any  negligence  on  the  part  of  the  petitioner  or  of  those  in 
charge  of  said  ship,  but  was  caused  by  the  negligence  of  the 

steam  tug ,   in  the  following   respects   among    others : 

\^Here  faults  are  specified^ 

Fourth.     On  or  about  the day  of ,  1894,  R.  M. 

filed  a  libel   and  commenced    a  suit  in    this  court  against 

said  ship ,  her  tackle,  etc.,  only,  for  damages  alleged  to 

be  sustained  by  steam  dredge  by  the  collision  aforesaid,  in 

the  sum  of dollars,  and  on  or  about  the day  of , 

1894,  the  petitioner  duly  filed  in  said  cause  a  claim  to  said 
ship ,  her  tackle,  etc.,  with  the  stipulation  for  costs  re- 
quired by  the  rules  and  practice  of  this  court,  and  also  a 

stipulation  in  the  sum  of dollars,  the  agreed  value  of 

said  ship.  Your  petitioner  has  not  filed  his  answer  to  said 
libel,  the  process  not  having  yet  been  returned. 

And  your  petitioner  alleges  that  said  steam  tug ,  her 

engines,  etc.,  ought  to  be  proceeded  against  for  said  dam- 
ages in  the  same  suit  as  said  ship. 

Fifth.     Said  steam  tug is   now  within   this  district 

and  within  the  jurisdiction  of  this  court. 

Sixth.  All  and  singular  the  premises  are  true,  and  within 
the  jurisdiction  of  the  United  States  and  of  this  honorable 
court. 

Wherefore  your  petitioner  prays  that  process  may  issue 
according  to  the  practice  of  this  court  and  the  rules  of  the 

supreme  court  in  admiralty  against  the  steam  tug ,  her 

engines,  etc.,  to  the  end  that  the  said  tug  may  be  proceeded 
against  in  this  suit  for  the  damage  alleged  to  have  been  sus- 


554  ADMIRALTY. 

tained  by  the  libellant,  R.  M.,  as  if  said  tug  had  been  orig- 
inally proceeded  against  herein.     And  the  petitioner  further 

prays  that  all  persons  claiming  any  interest  in  said  tug 

may  be  cited  to  appear  and  answer  the  libel  herein  and  this 

petition,  and  that  said  tug may  be  condemned  and  sold 

to  satisfy  the  claim  of  the  libellant  for  damages,  if  any,  with 
interest  and  costs,  and  also  the  costs  of  petitioner  herein, 
and  that  the  petitioner  may  have  such  other  and  further 
relief  as  may  be  proper.  J.  S. 

X.  &  X., 
Proctors. 

[  Verification.     See  No.  585  et  seq."] 

(i)  See  59th  Admiralty  Rule  and  Desty's  Fed.  Proc,,  page  1234,  and 
cases  cited.  

No.  574. 

Petition  against  Proceeds  in  the  Registry, 

The  District  Court  of  the  United  States,  It     a  j     •    ^l. 
for  the District  of .  |  ^^  Admiralty. 

To  the  Hon.  G.  W.,  Judge  of  the  District  Court  of  the 
United  States  in  and  for  the District  of : 

A.  B.,  of ,  brings  this  his  petition  and  therein  alleges 

and  propounds  as  follows : 

\^//ere  state  in  distinct  articles^  as  in  a  libel^  the  grounds  on 
which  the  suit  is  based^  and  continue  with  last  article  as  foU 
lows :  ] 

That  the  \_here  state  the  property  in  question'\  has  been  sold 
in  pursuance  of  a  decree  of  the  district  court  of  the  United 

States  for  the district  of ,  in  behalf  of  E.  F.,  in  a 

cause  of  contract  [  or^  etc.^  as  may  be\  civil  and  maritime,  and 
the  proceeds  of  said  sale  have  been  paid  into  the  registry  of 
the  court,  and  there  remains  [<?r,  will  remain]  from  such 
proceeds  after  satisfying  the  decree  of  said  court,  as  by  the 
records  and  proceedings  of  the  said  court  will  more  fully 
appear,  the  sum  of dollars. 

Wherefore  the  said  petitioner  prays  that  this  honorable 
court  will  pronounce  for  his  aforesaid  demand,  and  will  direct 


LIBELS   IN    REM    AND    PERSONAM.  555 

the  same  to  be  paid  out  of  the  aforesaid  proceeds,  so  remain- 
ing in  the  registry  of  the  court  as  aforesaid,  with  costs,  and 
for  such  other  and  further  relief  as  in  right  and  justice  he 
may  be  entitled  to  receive.  A.  B. 

X.  &  Y., 
Proctors. 

R.  X., 
Advocate. 

[Verification.     See  No.  585  et  seq!\ 

(i)  See  34th  Rule  in  Admiralty,  and  Benedict's  Admr.,  Sec.  561. 


No.  575. 

Petition  against  Proceeds  in  the  Registry  against  the 
Claimant   (i). 

[If  the  claimant  for  the  proceeds  has  appeared.,  the  petition 
may  be  the  same  as  in  No.  574,  and  the  prayer  should  be  as 
follows :  ] 

Wherefore  the  petitioner  prays  that  process  of  monition  in 
due  form  of  law,  according  to  the  course  of  this  honorable 
court,  in  cases  of  admiralty  and  maritime  jurisdiction,  may 

issue  against  the  said  R.  S.,  of ,  who  appeared  and  was 

duly  admitted  as  claimant  in  the  said  case,  and  that  he  may 

be  cited  to  appear  before  this  honorable  court,  on  the 

day  of ,  or  on  such  other  day,  to  be  inserted  in  the  said 

process,  as  the  court  shall  direct,  to  show  cause,  if  any  he  may 
have,  why  the  aforesaid  demand  of  the  petitioner  should  not 
be  allowed  and  ordered  to  be  paid  out  of  the  said  proceeds  so 
remaining  in  the  court  as  aforesaid ;  and  that  this  honorable 
court  will  pronounce  for  the  petitioner's  demand,  and  direct 
the  same  to  be  paid,  with  costs,  and  for  such  other  and  further 
relief  as  in  right  and  justice  he  may  be  entitled  to  receive. 

X.  &  Y.,  A.  B. 

Proctors. 

R.  X., 
Advocate. 

[Verification.     See  No.  585  et  seq?^ 

(i)  See  34th  Rule  in  Admiralty. 


556  ADMIRALTY. 

ANSWERS,  CLAIMS,  EXCEPTIONS,  AND 
VERIFICATIONS, 

No.  576. 

General  Form  of  Answer  (i). 

The  District  Court  of  the  United  States^ 
for  the District  of . 

A.  B.  ^ 

vs.  \     In  Admiralty. 

The  Ship .J 

To  the   Hon.  G.  W.,  Judge  of  the  District  Court   of  the 
United  States  in  and  for  the District  of : 

The  answer  of  L.  M.,  owner  of  the  ship ,  to  the  libel 

of  A.  B.,  against  the  said  ship  ,  in  a  cause  of  contract 

[^r,  (?/r.,],  civil   and   maritime,  and   said  respondent  alleges 
and  propounds  as  follows: 

First.  He  admits  that  the  allegations  of  articles  one  and 
two  of  the  libel  herein  are  true. 

Second.  This  respondent  has  no  knowledge  as  to  the 
matters  contained  in  articles  three  and  four  of  the  said  libel, 
and  requires  proof  of  the  same. 

Third.  He  admits  that  the  allegations  in  article  five  of 
the  said  libel  are  true. 

Fourth.  [Here  state  new  matter  of  defense  or  modification 
of  the  allegation  of  facts  set  forth  in  the  libely  etc.^ 

Fifth.     That  all  and  singular  the  premises  are  true. 

Wherefore  the  respondent  prays  that  this  honorable  court 
will  pronounce  against  the  demand  of  the  libellant  in  his 
libel  before  mentioned,  with  costs.  A.  B. 

X.  &  Y., 
Proctors. 

R.  X., 
Advocate. 

[  Verification.     See  No.  585  et  seq?^ 

(i)  See  27th  and  48tli  Rules  in  Admiralty.  Interrogatories  may  be 
added  at  the  end  of  the  answer.     See  326  Rule  in  Admiralty. 


ANSWERS,  CLAIMS,  AND   EXCEPTIONS.  557 

No.  577. 

Answer  to  a  Libel  in  Personam. 

\Proceed  with  title  and  address^  as  in  No.  576,  and  continue 
as  follows:~\ 

The  answer  of  C.  D.,  the  respondent,  to  the  libel  of  A.  B., 
libellant,  the  said  respondent  alleges  and  propounds  as  fol- 
lows: 

[Here  set  forth  the  matters  of  defense  in  numbered  articlesy 
and  conclud£  as  in  No.  576.] 

No.  578. 

Claim  and  Answer. 

[Caption  and  address !\ 

And  now  C.  D.,  of ,  intervening  for  his  interest  in  the 

ship ,  appears  before  this  honorable  court,  and  for  an- 
swer to  the  libel  and  complaint  of  T.  B.,  of ,  against  the 

said  ship,  and  against  all  persons  lawfully  intervening  for 
their  interest  therein,  alleges  and  articulately  propounds  as 
follows : 

First.     That  the  respondent  is  now  the  owner  of  the  said 

ship ,  and  also  was  the  owner  of  the  same  during  the 

time  the  said  T.  B.  belonged  thereto,  and  that  the  said  T.  B. 
was  duly  hired  to  serve  on  board  the  said  ship  for  the  voy- 
age, as  in  the  first  article  in  said  libel  is  propounded;  the 
articles  of  agreement  for  which  voyage,  signed  by  the  said 
T.  B.,  the  respondent  does  herewith  produce  in  court,  ac- 
cording to  the  prayer  in  the  said  first  article. 

Second.     That  the  said  ship ,  having  taken  on  board 

a  cargo  of  divers  goods  and  merchandise  for  the  voyage, 

proceeded  therewith  for  the  port  of ,  in ,  and  there 

safely  arrived  and  delivered  her  cargo  and  made  freight,  as 
in  the  third  article  in  the  said  libel  is  propounded. 

Third.     That  whilst  the  said  ship was  at  the  port  of 

,  the  said  T.  B.,  etc.  [here  state  the  bad  conduct  of  the 


558  ADMIRALTY. 

libellant^  amounting  to  mutiny  or  desertion^  or  other  ground 
of  forfeiture  of  wages^  and  such  other  matters  showing  that 
the  shipping  articles  were  substantially  broken^  and  also  any 
other  m,atters  calculated  to  support  and  establish  the  defense']. 

Fourth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  this  hon- 
orable court;  in  verification  whereof,  if  denied,  the  respon- 
dent prays  leave  to  refer  to  depositions  and  other  proofs,  to 
be  by  him  exhibited  in  this  cause. 

Wherefore  the  respondent  prays  that  this  honorable  court 
would  be  pleased  to  pronounce  against  the  libel  aforesaid, 
and  to  condemn  the  libellant  in  costs,  and  otherwise  right 
and  justice  to  administer  in  the  premises.  C.  D. 

Y.  &  Y., 
Proctors. 

[  Verification!] 

No.  579. 

Answer  by  an  Agent,  or  Consignee,  with  Claim 
Interposed. 

The  District  Court  of  the  United  States  . 

for  the District  of . 

A.  B.  1 

vs.  y      In  Admiralty. 

The  Ship .j 

To    the    Hon.  G.  W.,  Judge  of  the    District  Court  of  the 

United  States  in  and  for  the District  of : 

The  answer  of  E.  F.,  agent  of  L.  M.,  the  owner  [or,  of  E. 
F.,  the  consignee],  a  claimant  of  the  ship  [or,  etc.,],  to  the 
libel  of  A.  B.  against  the  said  ship,  in  a  cause  of  collision 
[or,  etc.,],  civil  and  maritime,  and  the  respondent  showeth  as 
follows : 

First.  That  the  said  L.  M.  is  the  true  and  bona  fide  owner 
(i)  of  the  said  ship,  and  that  no  other  person  is  the  owner 
thereof,  and  that  the  said  E.  F,  is  duly  authorized  by  the 
said  L.  M.  to  put  in  a  claim  in  behalf  of  the  said  ship  in  this 
suit. 


ANSWERS,  CLAIMS,  AND    EXCEPTIONS.  559 

Second.  [Here  state  the  facts  of  the  defense  and  claim  in 
numbered  articles.,  concluding  with  the  last  article.,  prayer.,  etc., 
as  in  No.  576.] 

(i)  See  26th,  27th,  and  48th  Rules  in  Admiralty. 


No.  580. 
Answer  and  Cross  Libel. 

\_Proceed  with  title  and  address  as  in  No.  576,  and  continue 
as  follows  :'\ 

The  answer  of  L.  M.,  [describing  him\  owner  of  the  ship 

[or  as  may  be\  to  the  libel  of  A.  B.,  of ,  master  of 

the  brig [ or  as  may  be\  in  a  cause  of  collision  [or  as 

may  be\  civil  and  maritime,  and  also  by  way  of  cross  libel  at 

the  suit  of  said  respondent  against  the  said  brig ,  her 

tackle,  sails,  apparel,  furniture,  boats,  and  other  appurte- 
nances, and  against  all  persons  intervening  for  their  interest 
therein,  in  a  cause  of  collision,  civil  and  maritime,  and  the 
said  respondent  showeth  as  follows : 

First.     That  the  said  brig is  now  in  the  port  of , 

within  the district  of . 

Second,  [  Here  make  answer  to  the  allegations  of  the  libel 
as  in  the  immediately  preceding  forms.,  and  set  forth  the  facts 
on  which  the  respondent s  claim  is  based.,  and  the  damages 
asked  in  numbered  articles.,  and  conclude  as  follows :  ] 

That  all  and  singular  the  premises  are  true,  and  within  the 
admiralty  and  maritime  jurisdiction  of  the  United  States,  and 
of  this  honorable  court. 

Wherefore  said  respondent  and  libellant  prays  that  this 
honorable  court  will  pronounce  against  the  demands  of  the 
libellant  in  the  original  libel  before  mentioned,  with  costs, 
and  he  further  prays  [continue  cls  in  No.  537,  to  ask  for  relief 
on  the  cross  libel\ 


560  ADMIRALTY. 

No.  581. 

Claim  of  Owner. 

\Title  and  address^ 

L.  M.,  owner  of  the  said  vessel,  her  boats,  tackle,  apparel,^ 
and  furniture,  intervening  for  his  interest  in  the  said  prop- 
erty, appears  before  this  honorable  court  and  claims  the  said 
property  and  states  that  the  said  L.  M.  is  the  true  and  bona 
fide  owner  (i)  thereof,  and  that  no  other  person  or  persons 
are  the  owners  thereof. 

And,  thereupon,  the  said  claimant  prays  that  this  honorable 
court  will  be  pleased  to  decree  a  restitution  of  the  aforesaid 
property  to  him,  and  otherwise  right  and  justice  to  administer 
in  the  premises.  L.  M. 

Sworn  to  and  subscribed  before  me  this day  of , 

1894.  J.  N., 

[  Seal.  ]  Notary  Public. 

(i)  See  26th,  27th,  and  48th  Rules  in  Admiralty. 


No.  582. 

Claim  by  the  United  States  Attorney  on  behalf  of  the 
United  States  for  Forfeiture  and  for  Duties  in  a  case 
of  Salvage  of  a  Foreign  Ship  and  Cargo. 

\Caption?^ 
To  the  Honorable  G.  W.,  Judge  of  the  District  Court  of  the 
United  States  for  the District  of : 

The  claim  of  J.  H.,  district  attorney  of  the  United  States 

of  America  for  the district  of ,  intervening  for  the 

interest  of  the  said  United  States  in  the   said  ship  called 

,  and  her  cargo,  and  the  answer  of  the  said  attorney  on 

behalf  of  the  said  United  States  to  the  libel  of  the  said  A.  B. 
and  S.  B.,  alleges  as  follows : 

First.     That  the  said  J.  H.,  district  attorney  of  the  United 

States  of  America  for  the district  of ,  claims  the 

said  ship ,  together  with  the  cargo  of  said  ship  laden  on 


ANSWERS,  CLAIMS,  AND   EXCEPTIONS.  561. 

board  of  her,  as  stated  and  set  forth  in  the  said  libel,  as  for- 
feited to  the  use  of  the  United  States,  for  the  cause  follow- 
ing, to  wit,  that  the  said  ship is  a  ship  or  vessel  owned 

wholly  or  in  part  by  a  subject  or  subjects  of  her  Britannic 

Majesty,  and  said  ship  or  vessel,  after  the day  of , 

one  thousand  eight  hundred  and  ninety-four,  did  come  and 
arrive  from  a  port  or  place  in  a  colony  or  territory  of  Her 

Britannic  Majesty,  to  wit,  from  the  port  of ,  in  the  island 

of ,  in  the ,  which  said  port  is,  and  was  at  the  time 

the  said  ship  sailed  from  thence,  by  the  ordinary  laws  of 
navigation  and  trade,  closed  against  vessels  owned  by  citi- 
zens of  the  United  States,  and  that  the  ports  of  the  United 
States  were  closed  against  the  said  ship  or  vessel  called  the 

,  which  said  ship  or  vessel,  being  so  excluded  from  the 

ports  of  the  United  States,  did  enter  the  same,  to  wit,  the 
port  of ,  in  the district  of ,  aforesaid,  in  viola- 
tion of  the  acts  of  congress  of  the  United  States  in  such 
case  made  and  provided.  By  force  and  virtue  of  the  acts  in 
such  case  made  and  provided,  the  said  ship  or  vessel,  her 
tackle,  apparel,  and  furniture,  together  with  the  cargo  on 
board  of  the  said  ship  or  vessel,  became  and  are  forfeited  to 
the  use  of  the  United  States. 

Second.  That  if  this  honorable  court  shall  adjudge  and 
decree  that  the  said  ship  or  vessel,  with  her  cargo  or  either, 
is  not  forfeited  to  the  use  of  the  United  States,  for  the  cause 
aforesaid,  the  said  ship  or  vessel,  together  with  the  cargo  on 
board  of  her,  is  liable  to  the  payment  of  the  duties  imposed 
by  the  laws  of  the  United  States,  and  on  the  importation  of 
the  cargo  of  merchandise  on  board  of  her,  to  wit,  rum  and 
sugar  of  the  growth,  produce,  and  manufacture  of  some  for- 
eign country,  and  which  are  subject  to  the  payment  of  duties 
to  the  United  States  on  being  brought  or  imported  into  the 
United  States ;  wherefore  the  said  attorney,  on  behalf  of  the 
said  United  States,  prays  this  honorable  court  to  decree  the 
payment  of  the  said  duties  to  the  United  States  according  to 
law,  if  the  said  ship  and  the  cargo  on  board  of  her,  as  afore- 


562  ADMIRALTY. 

said,  shall  be  adjudged  not  to  be  forfeited  to  the  use  of  the 
United  States  for  the  cause  aforesaid,  and  that  he  may  have 
his  costs,  etc.  And  the  said  attorney  further  insists  upon 
and  submits  to  this  honorable  court  the  rights  and  interest 
of  the  said  United  States  of  America  in  the  premises,  what- 
ever they  may  be,  to  be  decreed  to  them.  J.  H., 

United  States  Attorney. 


No.  583. 

Exceptions  to  a  Libel. 

The  District  Court  of  the  United  States 

for  the District  of . 

A.  B.  ^ 

vs.  V      In  Admiralty. 

The  Ship .  J 

To   the   Hon.  G.  W.,  Judge  of  the   District  Court  of  the 

United  States  in  and  for  the District  of . 

L.  M.,  respondent  \or^  claimant,  or  as  may  de],  excepts  to 
the  libel  of  A.  B. 

First.  Because  the  allegations  thereof  do  not  disclose  any 
damages  to  said  libellant. 

Second.  Because  the  allegations  thereof  do  not  disclose 
any  admiralty  and  maritime  claim  or  lien  upon  the  said  ves- 
sel whereupon  the  judgment  should  be  founded. 

Third.  [Set  forth  other  exceptions  in  like  manner.^  and  con- 
clude as  follows  :'\ 

In  all  which  particulars  the  said  libel  is  imperfect  and  in- 
sufficient, and  therefore  the  said  respondent  is  not  bound  to 
answer  the  same,  and  he  prays  that  the  said  libel  may  be 
dismissed  with  costs.  R.  X., 

Proctor  for  Respondent. 

Dated  at . 


ANSWERS,  CLAIMS,  AND   EXCEPTIONS.  563 

No.  584. 

Preemptory  Exception  to  a  Libel. 

{Caption^ 

L.  M.,  respondent,  excepts  to  the  libel  of  A.  B.  filed  against 

bim  in  this  court,  and  alleges  that  on  the day  of , 

1894,  said  libellant,  in  consideration  of dollars  to  him 

paid,  released  the  said  defendant  from  the  cause  of  action 
set  forth  in  the  cause  of  libel,  and  therefore  he  is  not  bound 
to  answer  the  same. 

Wherefore  he  prays  that  this  libel  may  be  dismissed  with 
costs.  L.  M. 

R.  X., 
Proctor. 

Subscribed  and  sworn  to  before  me  this day  of . 

iSeal.-]  J.  N., 

[Official  character^ 

No.  585. 

Oath  to  Libel  or  Answer. 

The  United  States  of  America, 

District  of ,  ss. 

On  this day  of ,  1894,  before  me,  at ,  person- 
ally appeared  the  within-named  A.  B.,  and  made  oath  that 
he  had  read  the  foregoing  libel  \or^  answer],  and  knows  the 
contents  thereof,  and  that  the  same  is  true  as  to  his  own 
knowledge,  except  as  to  those  matters  and  things  stated  to  be 
on  his  information  and  belief,  and  as  to  those  matters  and 
things  he  believes  them  to  be  true.                             A.  B. 

Subscribed  and  sworn  to  on  the  day  last  above  mentioned, 
before  me.  J.  H., 

[►&a/.]  United  States  Commissioner 

in  and  for  the 

District  of . 


564  ADMIRALTY. 

No.  586. 

Oath  by  Corporation. 

The  United  States  of  America, 

District  of ,  ss. 

On  this day  of ,  1893,  before  me,  at ,  person- 
ally appeared  the  within-named  A.  B.,  and  made  oath  that 
he  is  president  of  the  A.  B.  Co.,  the  libellant  in  the  above- 
named  libel,  and  that  the  seal  affixed  to  the  said  libel  is  the 
corporate  seal  of  the  said  company,  and  was  affixed  thereto 
by  authority  of  the  said  company ;  the  affiant  signed  the  said 
libel  as  such  president  by  like  authority  y  that  he  has  read  the 
said  libel  and  knows  the  contents  thereof  and  the  matters 
stated  therein  as  of  his  own  knowledge  are  true,  and  as  to  the 
matters  stated  upon  the  information  of  others  he  believes  ta 
be  true.  A.  B. 

Subscribed,  etc.  \^as  in  No.  584]. 


No.  587. 

Oath  of  Agent  or  Attorney  in  Fact. 

The  United  States  of  America, 

District  of ,  ss. 

On  this day  of ,  1893,  before  me,  at ,  person- 
ally appeared  the  within-named  R.  X.,  and  made  oath  that  he 
is  the  attorney  in  fact  for  the  libellant  \_or^  the  authorized 
agent  of  the  libellant,  or^  respondent,  as  the  case  may  be\  who 

resides  in (i),  and  that  the  facts  set  forth  in  the  libel 

are  just  and  true  according  to  the  best  of  his  knowledge, 
information,  and  belief.  R.  X. 

Subscribed,  etc.  \_as  in  No.  584]. 

(i)  If  the'libellant  or  respondent  is  a  resident  of  the  district,  he 
should  make  the  oath,  unless  absent  at  a  distance ;  then  this  fact 
should  be  stated. 


ANSWERS,  CLAIMS,  AND   EXCEPTIONS.  565 

No.  588. 
Oath  by  Proctor. 

The  United  States  of  America, 
District  of ,  ss. 

On  this day  of ,  1893,  before  me,  at ,  person- 
ally appeared  the  within-named  R.  X.,  and  made  oath  that  he 
is  the  proctor  for  the  libellant  in  the  foregoing  libel ;  that  the 
said  libellant,  as  affiant  is  informed  and  believes,  is  at  present 
in  France,  Europe,  and  that  he  is  specially  instructed  by  the 
libellant  as  to  the  truth  as  to  the  matters  stated  in  the  fore- 
going libel,  and  that  affiant  has  read  the  said  libel  and  knows 
the  contents  thereof,  and  that  the  matters  stated  therein  are 
true  to  the  best  of  his  knowledge,  information,  and  belief. 

R.  X. 

Subscribed,  etc.  [as  in  No.  584]. 


566^  ADMIRALTY. 


STIPULATIONS  AND  WRITS. 

*  No.  589. 

Stipulation  for  Costs  by  Libellant  in  a  Suit  in  Rem  (i). 

The  District  Court  of  the  United  States 

for  the District  of . 

On  the day  of ,  in  the  year  of  our  Lord  eighteen 

hundred  and  ninety-four,  before  me,  S.  T.,  Clerk  of  the 
said  Court  [or,  United  States  Commissioner,  or  as  may 
del 
A.  B.  ^ 

vs.  V     In  Admiralty. 

The   Ship  ,J 

In  a  cause  of  contract  [or  as  may  be\ ,  civil  and  maritime^ 
moved  and  prosecuted  in  said  court. 

Which  day  personally  appeared  the  above-named  A.  B.,  and 

produced  for  sureties  G.  H.,  [occupation],  of ,  and  J.  K., 

[occupation],  of ,  and  the  said  A.  B.,  G.  H.,  and  J.  K.^ 

submitting  themselves  to  the  jurisdiction  of  the  court,  bound 
themselves  there,  their  executors  and  administrators,  unto  the 
said  L.M.,  the  claimant  of  the  aforesaid  ship,  [when  the  stip- 
ulation is  made  before  the  claimant  has  appeared,  say,  "  For  the 
benefit  of  whomsoever  it  may  concern"]  in  the  sum  of 
$250.00  [or  whatever  sum.  is  required  by  the  rule  or  usage  of 
the  court]  ,  that  the  said  A.  B.  shall  prosecute  his  action  in  this 
behalf,  and  pay  all  costs  and  expenses  which  shall  be  awarded 
against  the  said  A.  B.  in  said  cause  by  the  final  decree  of  the 
said  court,  or  upon  appeal  of  the  appellate  court,  and  unless 
he  shall  do  so  they  hereby  severally  consent  that  execution 
shall  issue  forth  against  them,  their  executors  and  adminis- 


STIPULATIONS  AND   WRITS.  567 

trators,  goods,  chattels,  lands,  and  tenements,  wheresoever 
the  same  may  be  found,  to  the  value  of  the  sum  above  men- 
tioned. A.  B.  (3). 

G.  H. 
J.K. 
The  same  day  taken  and  acknowledged  before  me  (2). 
[Seal.]  B.  R., 

Clerk  of  the  District  Court  of  the 

United  States  for  the 

District  of . 

(i)  In  regard  to  when  a  stipulation  is  required,  see  Rules  3,  4,  5,  6, 
10,  II,  25,  26,  34,  35,  and  59,  in  Admiralty ;  in  Rules  3,  4,  5,  and  6,  suits 
tn  personam,  a  bond  or  stipulation  is  mentioned. 

(2)  Before  whom  acknowledgments  may  be  made.  See  5th  and 
35th  Rules  in  Admiralty.  For  an  exception  to  these  rules,  see  R.  S., 
Sec.  941. 

(3)  Stipulations  ought  not  to  be  sealed ;  and  possibly  bonds.  In 
Marriott's  Formulary  (272),  after  "Form  of  Bail  Bond,"  there  is  this 
note,  *'  The  bond  is  not  to  be  sealed." 


No.  590. 

Justification  of  Sureties. 

The  United  States  of  America, 

District  of ,  ss. 

G.  H.  and  J.  K.,  the  sureties  above  named,  each  for  him- 
self solemnly  swears  that  after  paying  his  just  debts  and  lia- 
bilities he  is  worth dollars  in  real  estate  and  personal 

property  within  the  jurisdiction  of  said  court  and  subject  to 
execution  and  levy.  G.  H. 

J.  K. 
Subscribed  and  sworn  to  before  me  on  the  day  aforesaid. 
[Seal.]  B.  R., 

Clerk  of  the  District  Court  of  the 

United  States  for  the 

District  of . 


568  ADMIRALTY. 

No.  591. 

Stipulation  for  Costs  by  Libellant  in  Personam. 

Form  No.  589  will  furnish  sufficient  guide  for  a  stipula- 
tion for  costs  by  libellant  in  an  action  in  personam^  and  No. 
590  for  justification  of  sureties. 


No.  592. 

Stipulation  for  Costs  by  Claimant  (i). 

[Proceed  as  in  No.  589  to  the  words  "  prosecuted  in  said 
court,"  and  continue  as  follows:^ 

Which  day  personally  appeared  L.  M.,  of ,  as  claim- 
ant of  the  said  ship ,  and  produced  for  sureties  G.  H. 

and  J.  K.,  and  the  said  L.  M.,  G.  H.,  and  J.  K.,  submitting 
themselves  to  the  jurisdiction  of  the  said  court,  bound 
themselves,  their  heirs,  executors,  and  administrators  unto 
the  said  A.  B.  in  the  sum  of  two  hundred  and  fifty  dollars 
to  pay  all  costs  and  expenses  which  shall  be  awarded  against 
the  said  L.  M.  in  said  cause,  by  the  final  decree  of  the  said 
court,  or,  upon  appeal,  of  the  appellate  court ;  and  unless  he 
shall  so  do,  they  do  hereby  severally  consent  that  execution 
shall  issue  forth  against  them,  their  heirs,  executors,  and  ad- 
ministrators, goods  and  chattels,  lands  and  tenements,  where- 
soever the  same  may  be  found.  L.  M. 

G.  H. 
J.  K. 

Same  day  taken  and  acknowledged  before  me. 

\Seai:\  S.  L., 

United  States  Commissioner. 

\Add  justification  of  sureties.     See  No.  590.] 

(i)  See  26th  Rule  in  Admiralty. 


STIPULATIONS   AND   WRITS.  569 

No.  593. 

Stipulation  by  Defendant  on  Arrest  in  an  Action 
in  Personam  (i). 

[Proceed  as  in  No.  589  to  the  words  "  executors  and  admin- 
istrators," and  proceed  as  follows :'\  unto  the  said  A.  B.,  in 
the  sum  of  \here  insert  the  sum  stated  in  the  warrant^  that 
the  said  L.  M.  shall  appear  in  the  said  suit  and  abide  all 
orders  of  the  said  court,  interlocutory  and  final,  in  the  said 
cause,  and  to  pay  the  money  awarded  by  the  final  decree 
therein  in  said  court  or  in  any  appellate  court ;  unless  he 
shall  so  do,  they  hereby  severally  consent  that  execution 
shall  issue  against  them,  their  executors,  and  administrators, 
goods  and  chattels,  wheresoever  the  same  may  be  found  to 
the  value  of  the  sum  above  mentioned. 

[Acknowledgment  and  justification  of  surety^  as  in  Nos.  589 
and  590.] 

(i)  See  3d  Rule  in  Admiralty. 


No.  594. 

Stipulation  for  the  Safe  Return  of  a  Ship. 

At  a  District  Court  of  the  United  States  of  America,  held  at 
,  within  and  for  the  District  of ,  on  the day 


of ,  1894. 

A.  B.,  owner  of  three  eighths  part  of  the  ship  [  or^  etc.^ , 

against  the  said  ship,  and  against  R.  S.,  the  master  thereof, 
and  C.  D.,  the  owner  of  the  remaining  five  eighths  part 
thereof. 

Which  day  personally  appeared  the  above-named  C.  D., 

and  produced  for  sureties  E.  F.,  of- ,  and  G.  H.,  of , 

.    And  the  said  C.  D.,  E.  F.,  and  G,  H.,  submitting  them- 


selves to  the  jurisdiction  of  this  court,  bound  themselves,  their 

heirs,  executors,  and  administrators,  in  the  sum  of ,  being 

double  the  appraised  value  of  three  eighth  parts  of  the  said 
vessel,  unto  the  above-named  A,  B.,  owner  of  the  said  three 


570  ADMIRALTY. 

eighths  part  of  the  said  vessel,  for  the   return  of  the  said 

vessel  to  the  port  of ,  being  the  port  to  which  the  same 

belongs,  or  else  to  pay  to  the  said  A.  B.  the  value  of  his  said 
shares ;  and  unless  they  shall  so  do,  they  hereby  severally 
consent  that  execution  shall  issue  forth  against  them,  their 
heirs,  executors,  and  administrators,  goods  and  chattels,  where- 
soever the  same  shall  be  found,  to  the  value  of  the  sum  afore- 
said. C.  D. 

E.  F. 

G.  H. 
[  Add  acknowledgment  and  justification  of  sureties.    See  Nos. 
589  and  590,  ]  

No.  595. 

Cost  Bond  by  Libellant  in  Personam  (i). 

Know  all  men  by  these  presents  that  we,  A.  B.,  of ,  as 

principal,  and  G.  H.,  of ,  and  J.  K.,  of ,  as  sureties, 

are  held  and  firmly  bound  to  L.  M.  in  the  sum  of  $250.00 
[<?r  whatever  amount  is  required  by  the  rule  of  the  said  court\ 
to  be  paid  to  the  said  L.  M.  his  executors  or  assigns ;  to  the 
payment  whereof  we  bind  ourselves,  our  heirs,  executors,  and 
administrators  jointly,  severally,  and  firmly  by  these  presents. 

Dated  on  this  — day  of ,  1894. 

Whereas  the  above  named  A.  B.  has  commenced  an  action 
[<9r,  is  about  to  file  his  libel]  in  the  district  court  of  the 

United  States  for  the district  of ,  against  L.  M.  in 

a  cause  of  contract  \or  as  may  be\  civil  and  maritime  ;  and 
now,  therefore,  the  condition  of  this  obligation  is  such,  that 
if  the  said  A.  B.  shall  prosecute  as  aforesaid  and  abide  all 
orders  interlocutory  and  final  of  the  aforesaid  court  and  pay 
all  costs  and  expenses,  if  such  shall  be  awarded  against  him 
by  the  final  decree  of  the  aforesaid  court  or  any  appellate 
court,  then  this  obligation  will  be  void,  otherwise  it  shall 
remain  in  full  force  and  virtue.  A.  B. 

G.  H. 
J.  K. 

\_  Add  justification  of  surety.     See  No.  ^<:)0?[  (2). 


STIPULATIONS   AND   WRITS.  571 

(i)  The  above  will  furnish  a  sufficient  guide  for  bonds  in  other  cases 
under  the  Admiralty  rules.  This  form  of  security  in  suits  in  rem  is 
not  favored,  to  say  the  least,  in  the  Rules  in  Admiralty.  See  No.  589^ 
note  I  ;  Conkling's  Admiralty,  p.  104,  et  seq. 

(2)  See  notes  2  and  3  to  No.  589. 


No.  596. 

Stipulation  for  Release  of  Vessel  (i). 

\Proceed  as  in  No.  589,  to  the  words ^  "prosecuted  in  said 
court,"  and  continue  as  follows  f\ 

Which  day  personally  appeared  L.  M.,  of ,  as  claimant 

of  the  said  vessel,  and  produced  for  surety  G.  H.,  of , 

and  J.  K.,  of ,  the  said  L.  M.,  G.  H.,  and  J.  K.  submitting 

themselves  to  the  jurisdiction  of  the  said  court,  bound  them- 
selves, their  heirs,  executors,  and  administrators  in  the  sum 

of  \double  the  amount  sued  for~\  unto  the  said  A.  B.; 

that  the  said  L.  M.  shall  abide  and  answer  the  decree  of  the 
said  court  in  the  aforesaid  cause,  and  unless  he  shall  so  do, 
they  do  hereby  severally  consent  that  execution  shall  issue 
forth  against  them,  their  heirs,  executors,  and  administrators, 
goods  and  chattels,  lands  and  tenements,  wheresoever  the 
same  may  be  found  for  the  value  of  the  sum  above  men- 
tioned. L.  M. 

G.  H. 
J.  K. 

The  same  taken  and  acknowledged  before  me. 

{Seal?[  J.  N., 

United  States  Commissioner. 

I  approve  of  the  sufficiency  of  the  sureties  to  the  within 
stipulation  \or^  bond]. 

Dated  this day  of ,  1894.  J.  S., 

Judge  [tfT,  Collector  of  Port]  (i). 

(i)  One  surety  is  probably  sufficient,  and  the  Judge,  or  Collector 
of  Port,  should  certify  to  the  sufficiency  of  the  surety,  or  sureties. 

See  R.  S.,  Sec.  941 ;  Conkling's  Admiralty,  page  575,  and  Benedict's 
Admiralty,  Sec.  499,  et  seq. 


572  ADMIRALTY. 

No.  597. 

W^arrant  of  Restitution. 

The  United  State's  of  America, 
District  of ,  ss. 


"The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the District  of ,  Greeting : 

Whereas,  in  a  certain  cause  moved  and  prosecuted  in  the 

district  court  of  the  United  States  for  the  district  of 

on  behalf  of  A.  B.  against  the  ship ,  a  claim  has 

been  interposed  by  L.  M.,  and  a  stipulation  filed  by  him  for 
the  restitution  of  the  said  vessel  now  in  your  custody  under 
the  writ  of  attachment  heretofore  issued  in  said  cause. 

You  are  therefore  by  these  presents  authorized  and  em- 
powered to  relinquish  the  said  vessel  [naming  it\  from  such 
attachment,  and  to  deliver  the  possession  thereof  to  the  said 
claimant  upon  his  paying  you  in  hand  the  sum  of  your 
actual  expenses  incurred  in  the  custody  and  care  of  the 
same. 

Hereof  fail  not,  and  of  this  writ  make  due  return. 

[Add  teste.     See  No.  30.] 


No.  598. 

Monition  and  Attachment. 

The  United  States  of  America, 
District  of ,  ss. 


The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  said  District,  Greeting : 
Whereas  a  libel  has  been  filed  in  the  district  court  of  the 

United  States  for  the district  of ,  on  the day 

of ,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  eighty ,  by  A.  B.,  to  recover  the  sum  of dollars 

in  a  cause  of  contract  \or  as  may  de],  civil  and  maritime,  for 
the  reasons  and  causes  in  said  libel  mentioned,  and  praying 
the  usual  process  and  monition  of  the  said  court  in  that  be- 
half to  be  made,  and  that  all  persons  interested  in  said  [name 


STIPULATIONS   AND   WRITS.  573 

ofvessef]  may  be  sighted  in  general  and  special  to  answer 
the  premises  and,  due  proceedings  being  had,  that  the  [name 
of  vessel^  niay,  for  the  causes  in  said  libel  mentioned,  be 
condemned  and  sold  to  pay  the  demands  of  the  libellant. 

You  are  hereby  commanded  to  attach  the  said  {name  of 
vessel\  and  to  detain  the  same  in  your  custody  until  the  fur- 
ther order  of  the  court  respecting  the  same,  and  to  give  due 
notice  to  all  persons  claiming  the  same,  or  knowing  or  hav- 
ing anything  to  say  why  the  same  should  not  be  condemned 
and  sold  pursuant  to  the  prayer  of  the  said  libel,  that  they 
be  and  appear  before  the  said  court,  to  be  held  in  and  for  the 

district  of ,  on  the Tuesday  of ,  1894,  at 

ten  o'clock  in  the  forenoon  of  the  same  day,  if  the  same  shall 
be  a  day  of  jurisdiction,  otherwise  on  the  next  day  of  juris- 
diction thereafter,  then  and  there  to  interpose  a  claim  for  the 
same,  and  make  their  allegations  in  that  behalf. 

And  what  you  shall  have  done  in  the  premises  do  you 
then  and  there  make  return  thereof,  together  with  this  writ. 

[Add  teste.     See  No.  30.] 

No.  599. 

Attachment  in  Personam. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the District  of ,  Greeting : 

Whereas  a  libel  has  been  filed  in  the  district  court  of  the 

United  States  for  the district  of ,  on  the day 

of ,  by  A.  B.  against  C.  D.,  in  a  certain  action,  civil  and 

maritime,  foi  [as  may  be\.  And  whereas,  by  the  mandate  of 
the  Honorable  G.  W.,  judge  of  the  said  court,  process  of  at- 
tachment has  been  awarded  against  the  said  C.  D. 

Now,  therefore,  we  do  hereby  command  you  that  you 
attach  the  said  C.  D.,  if  he  shall  be  found  in  your  district, 
and  him  safely  keep,  so  that  you  have  him  before  the  judge 


574  ADMIRALTY. 

of  the  said  court,  at  a  session  of  the  same  court  to  be  holden 

at ,  on  the day  of  ,  to  answer  the  said   libel 

and  to  make allegations  in  that  behalf. 

And  have  you  then  and  there  this  writ. 

[^Teste.     See  No.  30.] 

No.  600. 

"Writ  of  Seizure. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  said  District,  Greeting: 

Whereas  an  information  has  been  filed  in  the  district  court 

of  the  United  States  for  the district  of ,  on  the 

day  of ,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  ninety ,  by  J.  H.,  United  States  district  attor- 
ney for  the district  of ,  setting  forth  in  substance 

that  the  vessel  known  and  licensed  as  the  [name  of  vessel]  was 

engaged  in  bringing  contraband  goods  into  the  port  of 

[or  whatever  the  charge  may  be\  contrary  to  the  provisions 

of  section of  the  Revised  Statutes  of  the  United  States  in 

such  cases  made  and  provided  in  a  cause  of  seizure,  civil  and 
maritime,  for  the  reasons  and  causes  in  the  said  information 
mentioned,  and  praying  the  usual  process  and  monition  of 
the  said  court  in  that  behalf  to  be  made,  and  that  all  persons 
interested  in  the  said  vessel,  [name  of  vessel\  may  be  cited, 
general  and  special,  to  answer  the  premises,  and  due  pro- 
ceedings being  had,  the  said  vessel,  [nam£  of  vessel\  may, 
for  the  causes  in  the  said  information  mentioned,  and  other 
causes  appearing,  be  condemned  by  the  definitive  sentence 
and  decree  of  this  court,  and  forfeited  to  the  use  of  the 
United  States,  according  to  the  statutes  in  such  case  made 
and  provided. 

You  are  hereby  commanded  to  attach  the  said  vessel,  with 
her  tackle,  apparel,  and  furniture,  and  the  cargo  found  on 


STIPULATIONS  AND  WRITS.  575 

board  of  her,  and  to  detain  the  same  in  your  custody  until 
the  further  order  of  the  court  respecting  the  same,  and  to 
give  due  notice  to  all  persons  claiming  the  same,  or  knowing 
or  having  anything  to  say  why  the  same  should  not  be  con- 
demned and  sold  pursuant  to  the  prayer  of  the  said  informa- 
tion, that  they  be  and  appear  before  the  said  court,  to  be 
held  in  and  for  the district  of ,  on  the Tues- 
day of ,  1894,  at  ten  o'clock  in  the  forenoon  of  the  day, 

if  the  same  shall  be  a  day  of  jurisdiction,  otherwise  on  the 
next  day  of  jurisdiction  thereafter,  then  and  there  to  inter- 
pose a  claim  for  the  same,  and  to  make  their  allegations  in 
that  behalf. 

And  what  you  shall  have  done  in  the  premises  do  you 
then  and  there  make  return  thereof,  together  with  this  writ. 

[Add  teste.     See  No.  30.] 


576  ADMIRALTY. 


ORDERS  AND  DECREES. 

No.  601. 

Decree  Dismissing  Libel. 

\Captton.'\ 

And  now,  to  wit,  on  the day  of ,  1894,  this  case 

having  been  heard  on  the  pleadings  and  proofs,  and  after  ar- 
gument of  advocates  for  the  respective  parties,  and  due  de- 
liberation being  had  in  the  premises,  it  is  now  ordered,  ad- 
judged, and  decreed  by  the  court  that  the  libel  be,  and  the 
same  is  hereby  dismissed  for  want  of  jurisdiction  of  this 
court  in  the  matter  (i). 

(i)  Or  say,  "  with  costs,"  or,  "  each  party  to  pay  his  own  costs." 


No.  602. 

Decree  for  Libellant. 

\Caption^ 

And  now,  to  wit,  on  the day  of ,  1894,  this  case 

having  been  heard  upon  the  pleadings  and  proofs,  and  after 
argument  of  the  advocates  for  the  respective  parties,  and 
due  deliberation  being  had  thereon,  the  court  finds  that  there 
is  due  to  the  libellant  [on  contract,  or  as  may  be\  the  sum  of 

dollars,  and  that  the  same  is  a  lien  upon  the  said  vessel, 

in  consideration  whereof  it  is  now  ordered,  adjudged,  and 
decreed  by  the  court  that  the  respondent,  L.  M.,  pay  to  the 

libellant,  A.  B,  the  sum  of dollars,  with  interest  from 

the  day  of ,  amounting  to dollars,  with  his 

costs  to  be  taxed. 


ORDERS,  DECREES,  ETC.  577 

No.  603. 
Decree  in  rem  for  Sale  of  Vessel. 

[Caption.'] 

And  now,  to  wit,  on  the day  of ,  1894,  this  case 

having  been  heard  upon  the  pleadings  and  proofs,  and  after 
argument  of  the  advocates  for  the  respective  parties  here- 
to, and  due  deliberation  being  had  thereon,  the  court  finds 
that  there  is  due  to  the  libellant  [on  contract,  or  as  may  be\^ 

the  sum  of dollars,  and  that  the  same  is  a  lien  upon 

the  said  vessel,  in  consideration  whereof  it  is  now  ordered, 
adjudged,  and  decreed  that  the  libellant,  A.  B.,  recover  of 

the  ship the  amount  due  him  on  his  contract,  as  set 

forth  in  the  libel,  to  wit,  the  sum  of dollars,  together 

with  costs,  and  that  the  said  ship ,  her  tackle,  sails,  ap- 
parel, furniture,  boats,  and  other  appurtenances  be  con- 
demned and  sold  to  pay  the  same,  the  proceeds  of  said  sale 
to  be  paid  into  the  registry  to  await  further  order  of  the  court. 


No.  604. 

Decree  for  Libellant  when  Vessel  has  been  Released 

on  Bond. 

[Proceed  as  in  No.  602  and  add]  it  further  appearing  to  the 
court  that  the  said  vessel  has  been  released  to  the  claim- 
ant upon  a  stipulation  in  the  sum  of dollars,  with  E.  H. 

and  F.  G.  as  sureties,  it  is  hereby  ordered  that  the  said  C. 
D.,  claimant,  and  E.  H.  and  F.  G.,  sureties,  pay  the  said  sum 

of  dollars,  with    cost   taxed    at  dollars,   within 

twenty  days   from  the  date  of  this   decree,  and  in  default 
thereof  execution  be  and  the  same  is  hereby  awarded. 


No.  605. 

Decree  for  Wages. 

[Caption^ 

And  now,  to  wit,  on  the day  of ,  1894,  this  case 

having  been    heard    upon    the    pleadings  and    proofs,  and 


578  ADMIRALTY. 

after  argument  of  the  advocates  for  the  respective  parties 
and  due  deliberation  being  had  thereon,  the  court  finds  that 
there  is  due  to  the  libellant,  on  his  contract  for  services,  the 

sum  of dollars,  and  that  the  same  is  a  lien  on  the  said 

vessel,  in  consideration  whereof  it  is  ordered,  adjudged,  and 
decreed    that  the  libellant,    A.  B.,    recover    for  service    on 

board  the  said  ship ,  the  sum  of dollars,  deducting 

therefrom  the  sum  of dollars,  advanced  wages,  making 

the  sum  due dollars,  which  said  sum  it  is  ordered  that 

the  respondent  pay  to  the  libellant,  together  with  his  costs 
to  be  taxed. 


606. 

Decree  Pro  Confesso. 

[Caption.'\ 

And  now,  to  wit,  on  the day  of ,  1894,  on  mo- 
tion of  R.  X.,  proctor  for  the  libellant,  it  is  ordered,  ad- 
judged, and  decreed  that  the  libel  be  taken  pro  confesso 
for  default  of  answer  thereto  by  the  said  respondent,  and 
that  the  libellant,  A.  B.,  recover  from  the  respondent,  L.  M., 

the  sum  of dollars,  together  with  his  interest  thereon, 

amounting  to dollars,  being  in  all dollars,  together 

with  his  costs. 


No.  607. 
Decree  Pro  Confesso  to  a  Libel  in  rem. 

\^Caption^ 

And  now,  to  wit,  on  the day  of ,  1894,  on  the 

motion  of  R.  X.,  proctor  for  the  libellant,  and  on  presenta- 
tion of  the  affidavit  of ,  libellant,  in  support  of  his  claim, 

it  is  ordered,  adjudged,  and  decreed  that  the  libel  be  taken 
pro  confesso  for  default  of  answer  thereto,  and  that  the  libel- 
lant recover  of  the  said  ship the  sum  of dollars, 

with  costs';  and  it  further  appearing  that  proclamation  hav- 
ing been  duly  made,  and  that  no  claimant  has  appeared  on 


ORDERS,  DECREES,  ETC.  579 

like  motion  of  the  said  proctor  for  libellant,  it  is  ordered,  ad- 
judged, and  decreed  that  the  said  ship ,  her  tackle,  sails, 

apparel,  furniture,  boats,  and  other  appurtenances  be  con- 
demned and  sold  to  pay  the  said  decree,  with  costs,  and  that 
a  writ  of  sale  be  issued  forthwith,  and  the  said  proceeds  of 
sale  be  paid  into  the  registry  to  await  the  further  order  of 
the  court. 


No.  608. 

Decree  for  Salvage. 

And  now,  to  wit,  on  the day  of ,  1894,  this  case 

having  been  heard  on  the  pleadings  and  proofs,  and  after  ar- 
gument by  the  advocates  for  the  respective  parties,  and  due 
deliberation  thereof  being  had,  the  court  finds  [state  what^ 
and  it  is  ordered,  adjudged,  and  decreed  that  the  libellants 
recover  of  the  respondent,  C.  D.,  or  his  stipulators,  B.  F. 
and  G.  H.,  the  sum  of dollars,  for  their  services  as  sal- 
vors as  in  the  libel  set  forth,  together  with  costs,  and  it  is 

ordered,  adjudged,  and  decreed  that  the  said  sum  of 

dollars  be  distributed  as  follows  :  [Here  state  name  and  oc- 
cupation of  each  person  recovering^  and  the  amount  due  him.^ 


No.  609. 

Interlocutory  Decree  for  Sale  of  Vessel. 

[Caption^ 

And  now,  to  wit,  on  the day  of ,  1894,  on  read- 
ing and  filing  the  affidavits  of  A.  B.  and  C.  D.,  and  the 
admission  of  the  proctors  for  the  respective  claimants,  and 
on  motion  of  R.  X.,  Esquire,  proctor  for  the  libellant,  it  is 
ordered  that  the  ship ,  her  tackle,  sails,  apparel,  furni- 
ture, boats,  and  appurtenances  be  sold  by  the  marshal  on  six 
days'  public  notice,  and  that  a  venditioni  expoTias  be  issued 
accordingly,  and  that  the  marshal  bring  the  proceeds  of  such 
sale  into  the  registry  to  await  the  further  order  of  the  court. 


580  ADMIRALTY. 

No.  610. 

Interlocutory  Decree  for  Sale  of  Perishable  Property. 
For  form  of  Decree,  consult  No.  609. 


No.  611. 

Final  Decree  in  Proceedings  for  Limitation  of  Liability 
in  Admiralty  (i). 

[Caption^ 

A  libel  and  petition  of  said  T.  Steamship  Co.  having  been 
filed  in  this  court,  showing  that  it  is  the  owner  of  the  late 
steamship  D,,  which  broke  its  shaft  and  was  abandoned  on 

the  high  seas  on  the day  of ,  1894,  resulting  in  the 

total  loss  of  said  vessel  with  the  cargo  laden  thereon ;  and  it 
further  appearing  therefrom  that  at  the  time  of  filing  said 
libel  and  petition  various  actions  were  threatened  by  certain 
passengers  thereon,  and  that  one  suit  was  pending  against 
the  petitioner  by  one  X.  Y.,  as  plaintiff,  in  the  supreme  court 

of  the  state  of ,  in  the  city  and  county  of ,  within 

the  district  of ,  to  recover  for  loss,  damage,  and 

destruction  of  baggage  shipped  or  put  on  board  said  steam- 
ship; and  it  also  appearing  that  such  loss,  damage,  injury, 
and  destruction  of  property  were  occasioned  without  the 
privity  or  knowledge  of  said  petitioner,  and  that  said  peti- 
tioner desires  to  claim  the  benefit  of  the  limitation  of  lia- 
bility provided  for  in  the  act  of  congress  of  the  United  States, 
entitled  "An  act  to  limit  the  liability  of  shipowners,  and  for 
other  purposes,"  passed  March  3,  185 1,  now  embodied  in 
Sections  4283  to  4285  of  the  Revised  Statutes  of  the  United 
States,  and  the  several  acts  and  statutes  amendatory  thereof 
and  supplemental  thereto;  and  said  petitioner  having  contested 
any  and  all  liability  in  respect  to  said  loss,  destruction,  dam- 
>  age,  and  injury  (independently  of  the  limitation  of  liability 
claimed),  and  said  libel  and  petition  having  stated  the  facts 
and  circumstances  by  reason  of  which  exemption  from  lia- 


ORDERS,  DECREES,  ETC.  581 

bility  is  claimed;  and  an  order  of  this  court  having  been 

made  thereon,  dated  the day  of ,  1894,  whereby  it 

was  ordered  that  the  said  petitioner  transfer  its  interest  in 
the  said  steamship  and  her  freight  for  the  voyage  in  said 
libel  and  petition  mentioned  to  S.  L.,  to  act  as  trustee  for 
the  person,  or  persons,  who  may  prove  to  be  legally  entitled 
thereto,  pursuant  to  the  provisions  of  said  act  of  congress  of 
the  United  States,  and  the  statutes  amendatory  thereof  and 
supplemental  thereto ;  and  the  petitioner  having  duly  com- 
plied with  said  order,  and  having  made  said  transfer  to  said 
trustee,  as  appears  by  the  instrument  of  transfer  duly  exe- 
cuted by  said  petitioner  to  said  trustee,  bearing  date  of  the 

day  of  ,  1894;    and  an  order  having   also   been 

made,  dated  on  said day  of ,  1894,  directing  a  mo- 
nition to  issue  out  of  and  under  the  seal  of  this  court,  citing 
all  persons  claiming  damages  for  the  loss,  destruction,  dam- 
age, and  injury,  to  appear  before  this  court  and  make  due 
proof  of  their  respective  claims,  with  liberty  also,  upon  mak- 
ing proof,  to  answer  said  libel  and  petition ;  and  a  monition 

having  been  thereupon,  and  on  the  said  day  of , 

1894,  duly  issued  in  pursuance  of  said  last-mentioned  order, 
and  the  said  monition  having  been  duly  returned  by  M.  T., 

the  marshal  of  the  United  States  for  the district  of , 

with  proof  of  due  personal  service  of  said  monition  on  the 
attorney  of  record  for  X.  Y.,  the  plaintiff  in  the  suit  brought 
and  pending  against  said  petitioner,  and  also  due  proof  of 
the  giving  of  due  notice  of  said  monition  by  publication  in 
conformity  with  the  directions  in  said  last-mentioned  order. 
And  on  the  return  of  said  monition,  proclamation  having 
been  duly  made  for  all  persons  claiming  any  damages  for 
any  loss,  destruction,  damage,  or  injury  occasioned  by  the 
disaster  above  referred  to,  to  appear  and  present  their  claims, 
and  such  answers  and  exceptions  as  they  should  be  advised, 
and  no  person  having  appeared,  and  no  answer  or  exceptions 
having  been  filed,  and  the  default  of  all  persons  having  been 
duly  noted.  And  a  report  "^.having  been  duly  rendered  and 
filed  by  S.  L.,  commissioner  appointed  in  this  proceeding  as 


583  ADMIRALTY. 

aforesaid,  which  report  bears  the  date  of  the  day  of 

,  1894,  from  which  it  appears  that  no  claims  have  been 

presented  to  him  by  any  person  or  parties  whatsoever,  and 
it  further  appearing  from  said  report  and  the  testimony  filed 
therewith  that  said  steamship  D.  was  lost  and  abandoned  at 

sea  on   the  day  of  ,  1894,  and  that  the  circum- 

I  stances  of  said  disaster  have  been  correctly  set  forth  in  the 
libel  and  petition  herein,  and  that  said  loss  and  disaster  were 
done  and  occasioned  without  fault,  privity,  or  knowledge  of 
the  petitioner  herein,  or  of  any  of  its  servants,  but  were  due 
solely  to  the  perils  of  the  seas;  and  that  at  the  time  of 

starting  upon  said  voyage  from said  steamship  was  in 

good  condition,  and  was  in  every  respect  fully  manned  and 
equipped ;  and  it  being  also  reported  by  said  commissioner 
that  the  petitioner  herein  is  entitled  to  the  benefit  of  the 
limitation  of  liability  provided  for  in  the  act  of  congress  of 
the  United  States,  entitled  "An  act  to  limit  the  liability 
of  shipowners,  and  for  other  purposes,"  passed  March  3, 
185 1,  now  embodied  in  Sections  4283  and  4285  of  the  Re- 
vised Statutes  of  the  United  States,  and  the  several  acts  and 
statutes  amendatory  thereof  and  supplemental  thereto;  and 
the  said  S.  L.,  as  trustee,  having  also  made  and  filed  his  re- 
port as  such  trustee,  wherein  he  finds  and  reports  that  said 
steamship  D.  has  become  a  total  loss,  and  that  nothing  has 
been  received  or  recovered  therefrom,  and  that  no  freight 
moneys  have  been  earned,  paid,  or  received  therefrom,  and 
that  nothing  has  therefore  come  to  him  or  is  recoverable  by 
him  as  such  trustee,  and  said  reports  coming  on  to  be  heard, 
now  upon  motion  of  S.  &  G.,  proctors  for  the  petitioner. 

It  is  ordered  that  the  several  reports  of  S.  L.,  as  commis- 
sioner and  as  trustee,  be,  and  they  each  are  hereby,  in  all 
things  confirmed ;  and  that  the  defaults  of  all  and  every 
persons,  and  parties  thereto  be,  and  the  same  hereby  are, 
entered  herein,  and  that  the  allegations  of  said  libel  and 
petition  stand  as  confessed  and  admitted. 

It  is  further  ordered,  adjudged,  and  decreed  that  said 
petitioner,  the  T.  Steamship  Co.,  as  owner  of  the  late  steam- 


ORDERS,  DECREES,  ETC.  583 

ship  D.,  is  entitled  to  the  benefit  of  the  limitation  of  liability 
provided  for  in  the  act  of  congress  of  the  United  States,  en- 
titled "An  act  to  limit  the  liability  of  shipowners  and  for 
other  purposes,"  passed  March  3,  185 1,  now  embodied  in 
Sections  4283  to  4285  of  the  Revised  Statutes  of  the  United 
States,  and  the  several  acts  and  statutes  amendatory  thereof 
and  supplemental  thereto. 

And  it  is  further  ordered,  adjudged,  and  decreed  that  said 
libellant  and  petitioner  be,  and  it  hereby  is,  forever  dis- 
charged from  all  and  every  claim  or  demand  arising  from 
or  growing  out  of  said  disaster  to  the  said  steamship  D.,  or 
out  of  the  loss  and  abandonment  of  said  vessel,  and  the  loss 
or  injury  to  any  cargo,  property,  effects,  and  goods  then  laden 
thereon. 

It  is  further  ordered  that  said  X.  Y.,  his  agents,  attorneys, 
proctors,  and  counsel  refrain  from  the  further  prosecution  of 
said  action  begun  by  him  against  said  petitioner  to  recover 
for  the  loss,  destruction,  and  injury  as  aforesaid. 

It  is  further  ordered  that  all  other  persons  whomsoever 
claiming,  or  who  may  hereafter  claim,  for  any  loss,  destruction, 
damage,  or  injury  occasioned  by  said  disaster  to  the  steamship 
D.,  or  by  her  loss  and  abandonment,  be,  and  the  same  hereby 
are,  perpetually  restrained  and  enjoined  from  bringing,  com- 
mencing, or  instituting,  or  further  prosecuting  any  suit  or 
suits,  or  proceedings  whatever,  upon  any  cause  of  action 
whatsoever,  against  the  T.  Steamship  Co.  for  any  loss,  dam- 
age, or  injury  done,  suffered,  or  occasioned  by  reason  of  the 
loss  and  abandonment  of  said  steamship  D.,  as  aforesaid. 

And  it  is  further  ordered  that  this  decree  be  served  within 

the district  of ,  in  the  usual  manner,  and  within  any 

district  or  districts  of  the  United  States  other  than  the 

district  of ,  by  the  United  States  marshal  for  such  other 

district  or  districts  respectively,  by  delivering  a  copy  of  such 
original  decree,  and  exhibiting  a  certified  copy  thereof  to  the 
party  or  person  to  be  served. 

(i)  See  Petition  for  I^imitation  of  Liability,  No.  572. 


584  ADMIRALTY, 

No.  612. 

Order    of  the  Court  on    the    Return    of    Mesne  Process 

in  Rem. 
\Captio7t^ 

The  marshal  having  returned  upon  the  monition  in 
this  cause  that  he  had  attached  the  said  ship,  her  tackle, 
etc.,  and  cargo,  and  had  given  due  notice  to  all  persons 
claiming  the  same  that  this  court  would  on  this  day  pro- 
ceed to  the  trial  and  condemnation  thereof,  should  no  claim 
be  interposed  for  the  same. 

On  motion  of  Mr.  X.,  proctor  for  the  libellants,  procla- 
mation was  made  for  all  persons  having  anything  to  say 
why  the  said  vessel  and  her  cargo  should  not  be  condemned 
and  sold  to  answer  the  prayer  of  the  libellants  to  appear, 
and  on  like  motion  ordered  that  the  defaults  of  all  persons 
who  have  not  already  filed  their  claims  be  entered. 


No.  613. 

Proclamation  on    the  Return  of  Process  in  Rem. 
Hear  ye !  hear  ye!   A.  B.  and  S.  B.,  against  the  ship  — 


her  tackle,  apparel,  and  furniture,  and  cargo.     All  persons 

who  have  anything  to    say  why  the  ship ,  her  tackle, 

apparel,  and  furniture,  and  cargo  should  not  be  condemned 
and  sold  to  answer  the  prayer  of  the  libellants  in  this  cause, 
come  forward  and  make  your  allegations  in  that  behalf. 


No.  614. 

Replication  to  Claim  and  Answer. 

\Caption^ 

Now  comes  A.  B.,  libellant,  and  for  replication  to  the 
claim  and  answer  of  L.  M.,  claimant  and  respondent,  al- 
leges that  he  will  aver,  maintain,  and  prove  his  libel  to  be 
true,  certain,  and  sufficient ;  and  that  said  claim  and  answer 


ORDERS,  DECREES,  ETC.  585 

of  the  said  claimant  and  respondent  is  uncertain,  untrue, 
and  insufficient,  and  he  humbly  prays  as  in  and  by  his  libel 
he  has  already  prayed. 

X.  &X., 
Proctors  for  Libellant. 

No.  615. 

Commissioner's  Report; 

[^Caption^ 
To  the  Honorable  G.  W.,  Judge  of  the  District  Court  of  the 
United  States  for  the District  of : 

In  pursuance  of  a  decretal  order  of  reference  made  and 
entered  in  the  above  entitled  cause,  by  which  it  was  referred 
to  me  to  ascertain  the  amount  of  the  damages  sustained  by 
the  libellants,  and  report  thereon  to  the  court,  I  do  respect- 
fully report  that  I  have  been  attended  on  such  reference  by 
the  proctors  for  the  respective  parties  and  witnesses,  and  have 
taken  and  examined  the  proofs  offered  in  evidence,  and  there- 
upon report  as  follows : 

That  the  amount  of  the  damages  sustained  by  the  libellants, 
being  the  expense  of 

Lightering  cement $ 

Barrels $ 

Cooperage $ 

Cleaning  and  repacking  cement   ....  $ 

Total  .   .    .  $ 

Credit  allowed  ...    •    •   •  $ 

With  interest $ 

from day  of — —,  1894,  to  date    .   .  $ 

Is  in  all  the  sum  of $ 

dollars  at  the  date  of  this  report. 

All  of  which  is  respectfully  submitted.  J.  N., 

U.  S.  Commissioner. 
Dated . 


586  ADMIRALTY. 

No,  616.. 

r^  J.J-     n  Exceptions  to  Commissioner's  Report. 

\^Captton.\  *^  *^ 

The  claimants  except  to  the  commissioner's  report  herein, 
for  the  following  reasons  : 

First.  Because  he  has  reported  that  the  libellants  were 
entitled  to  the  value  of  the  charter  money  of  C,  as  well  as  to 

dollars  for  the  use  of  the  M.  for  eight  days,  during  which 

the  M.  was  employed,  whereas  he  should  have  allowed  for 
those  days  only  the  amount  paid  the  M. 

Second.  Because  he  has  allowed  the  libellants  the  full 
amount  of  the  charter  money  of  the  C,  when  the  evidence 
shows  that  no  charter  money  was  lost  by  reason  of  the  C. 
being  damaged. 

Third.     Because  he  has  allowed  for  a  new  wheel  of  the  C. 

Fourth.  Because  he  has  reported  that  the  libellants  are 
entitled  to  recover dollars  for  repairs. 

Fifth.  Because  he  has  reported  that  the  libellants  are 
entitled  to  recover dollars  for  demurrage. 

Sixth.  Because  he  has  reported  that  the  libellants  are 
entitled  to  recover  the  sum  of dollars. 

Seventh.  Because  he  has  adopted  an  erroneous  rule  of 
damages,  and  allowed  more  than  the  market  value  of  the  C. 
during  the  detention. 

Eighth.  Because  he  has  allowed  to  the  libellants  for 
demurrage  more  than  they  actually  lost,  viz.,  more  than  the 
expense  incurred  by  them  in  performing  the  various  charters 
of  the  C. 

Ninth.  Because  he  has  not  adopted  the  principle  of  resti- 
tutio in  integrum^  but  by  his  report  has  held  that  the  libel- 
lants could  make  a  profit  out  of  the  disaster.  R.  Z., 

Claimants'  Proctor. 


ORDERS,  DECREES,  ETC.  587 

No.  617. 

Order  Appointing  Appraisers. 
[Caption^ 

Upon  the  affidavit  of [or,  consent  of  the  parties  here- 
to], now,  on  motion  of  Z.  &  Z.,  proctors  for  the  owners  of  said 

bark  ,  it  is  ordered  that  E.  F.,  and  G.  H.  be,  and  they 

hereby  are,  appointed  appraisers  to  appraise  the  value  of  the 

bark  ,  her  tackle,  etc.,  and   return   the   appraisement 

made  to  the  clerk  of  this  court  forthwith.  And  that  before 
proceeding  to  make  such  appraisement  said  appraisers 
choose  in  writing  a  third  person,  who  shall  act  with  them  in 
case  they  disagree  as  to  the  value  of  said  vessel ;  that  the  ap- 
praisement be  made  in  the  first  instance  by  the  two  apprais- 
ers herein-named,  and  that  in  case  they  can  not  agree,  then 
the  third  person  so  chosen  act  with  them,  and  the  appraise- 
ment of  two  said  appraisers  stand  as  the  appraisement  of  said 
vessel. 


No.  618. 

Notice  to  Appraisers. 
[Caption^ 

E.  F., 

Sir:     Take  notice  that  you,  together  with  G.  H.,  have  been 

appointed  appraiser  to  appraise  the  value  of  the  bark . 

You  will  please  call  at  the  office  of  the  clerk  of  the  district 

court  of  the  United  States,  in  the  city  of ,  at o'clock 

a.  m.,  on  the  instant,  and  take  and  subscribe  the  oath 

required  by  law.  B.  R., 

Clerk. 


[Caption^ 
State  of  - 


No.  619. 
Oath  of  Appraisers. 


County  of ,  ss. 

We,  the  undersigned,  having  been  appointed  appraisers  to 
appraise  the  value  of  the  bark ,  do  solemnly  swear  that 


588  ADMIRALTY. 

we  will  faithfully  appraise  the  same  to  the  best  of  our  skill 
and  ability.  E.  F. 

G.  H. 
Subscribed  and  sworn  to  before  me  this day  of , 

1894.  J.  N., 

[Seal."]  Notary  Public  in  and  for 

County. 


No.  620. 

Notice  of  Appraisement. 

The  undersigned,  having  been  duly  appointed  appraisers 

to  appraise  the  bark ,  her  tackle,  etc.,  do  hereby  give 

notice  that  they  will  proceed  to  appraise  said  bark  at  the 

wharf, ,  where  she  now  lies,  on  the day  of 

,  at  ten  o'clock  a.  m.  of  that  day.  E.  F., 

G.  H., 

Dated .  Appraisers. 

No.  621. 

Report  of  Appraisers. 

We,   the  undersigned,  having  been   duly  appointed  and 

sworn  as  appraisers  to  appraise  the  bark ,  her  tackle, 

etc.,  do  report  that  we  have  examined  and  appraised  said 
bark,  and  do  find  that  said  bark,  her  tackle,  etc.,  are  worth 
the  sum  of dollars. 

All  of  which  is  respectfully  submitted,  E.  F. 

Dated .  G.  H. 


No.  622. 

Order  for  Transfer  to  Trustee. 

Upon  reading  and  filing  the  libel  and  petition  of  the  T. 
Steamship  Company,  as   owner   of  the   late   steamship  D., 


ORDERS,  DECREES,  ETC.  589 

showing  that  it  has  been  sued  as  such  owner  by  one  X.  Y., 
claiming  to  have  been  owner  of  certain  passenger's  baggage 
lost  and  destroyed  on  said  vessel  at  the  time  of  the  abandon- 
ment of  said  steamship  on  the  day  of ,  1894,  to 

recover  for  such  loss,  destruction,  damage,  and  injury ;  and 
that  other  actions  are  threatened  against  said  petitioner,  and 
that  the  whole  value  of  said  vessel  and  her  freight  has  been 
totally  lost,  and  that  the  same  is  therefore  not  sufficient  to 
make  compensation  to  each  of  the  freighters  and  owners 
therefor;  and  that  such  loss,  destruction,  damage,  and  injury 
was  done,  occasioned,  and  incurred  without  the  privity  or 
knowledge  of  such  owner,  and  that  said  petitioner  desires  to 
claim  the  benefit  of  the  limitation  of  liability  provided  for  in 
the  third  and  fourth  sections  of  the  act  of  congress,  entitled 
"An  act  to  limit  the  liability  of  shipowners  and  for  other 
purposes,"  passed  March  3,  1851,  now  embodied  in  sections 
4283  to  4285  of  the  Revised  Statutes  of  the  United  States, 
and  the  various  statutes  in  addition  thereto  and  amendatory 
thereof,  and  also  to  contest  its  liability  and  the  liability  of 
said  vessel  for  said  loss,  destruction,  damage,  and  injury,  in- 
dependently of  the  limitation  of  liability  claims  under  said 
act,  said  libel  and  petition  also  stating  the  facts  and  circum- 
stances on  which  such  exemption  from  and  limitation  of 
liability  are  claimed,  and  praying  proper  relief  in  the  prem- 
ises in  that  behalf,  and  the  said  owner  having  elected  to  make 
a  transfer  as  hereinafter  provided, 

It  is  hereby  ordered,  in  conformity  with  said  act  of  con- 
gress and  the  statutes  amendatory  thereof,  and  the  rules  of 
the  supreme  court  of  the  United  States  made  in  pursuance 
thereof,  that  said  T.  Steamship  Co.  transfer  its  interest  in 
the  late  steamship  D.  and  her  freight  for  the  said  voyage,  for 

the  benefit  of  all  such  claimants,  to  S.  L.,  of  the  city  of , 

who  is  hereby  appointed,  pursuant  to  the  provisions  of  the 
fourth  section  of  said  act,  to  be  trustee  for  the  person  or  per- 
sons who  may  prove  to  be  legally  entitled  thereto. 


590  ADMIRALTY. 

No.    623. 

Transfer  to  Trustees. 

[^Caption.'] 

Whereas  a  petition  has  been  filed  by  the  above-named 
petitioner,  as  owner  of  the  late  steamship  D.,  praying  for  a 
limitation  of  its  liability  in  respect  to  such  vessel;  and 
whereas,  by  an  order  duly  made  herein,  S.  L.  has  been  ap- 
pointed trustee,  to  whom  the  petitioner's  interest  in  said 
steamship  and  her  freight  is  directed  to  be  transferred  for  the 
benefit  of  the  claimants  thereto. 

Now,  therefore,  in  consideration  of  the  premises,  and  in 
compliance  with  the  said  orders  of  this  honorable  court,  the 
T.  Steamship  Co.,  of ,  above-named,  by  its  agents  there- 
unto duly  and  lawfully  authorized,  in  pursuance  of  the  act 
of  congress  of  the  United  States,  entitled  "An  act  to  limit 
the  liability  of  shipowners  and  for  other  purposes,"  passed 
March  3,  1851,  now  embodied  in  Sections  4283  to  4285 
of  the  Revised  Statutes  of 'the  United  States,  and  the  several 
statutes  amendatory  and  supplemental  thereof,  and  in  com- 
pliance with  the  rules  of  the  supreme  court  of  the  United 
States  made  in  pursuance  thereof,  does  hereby  grant,  assign, 
transfer,  and  set  over  absolutely  all  its  right,  title,  and  in- 
terest, and  property  in  and  to  said  steamship  known  as  the 
D.,  her  engines,  boiler,  tackle,  apparel,  and  furniture,  or  any 
savings,  remnants,  or  wreckage  of  said  steamship,  her  en- 
gines, boilers,  tackle,  apparel,  and  furniture,  and  in  and  to 
the  freight  of  said  steamship  for  her  last  voyage,  in  said 
petition  mentioned,  whether  now  or  hereafter  obtained,  unto 
S.  L.,  as  trustee,  appointed  by  the  said  order  of  the  district 
court  as  aforesaid,  to  have  and  to  hold  the  same  to  him  and 
his  successors  for  the  proper  uses  and  ofiices  of  his  said 
office  of  trustee.  Power  is  hereby  granted  and  conveyed  to 
the  said  S.  L.,  trustee  as  aforesaid,  and  his  successors  in 
office,  to  make  and  enforce,  by  such  actions  at  law  or  other- 
wise as  may  be  necessary,  all  claims  and  demands  of  said 
T.  Steamship  Co.  for  said  steamship,  her  remnants  and 
freight. 


ORDERS,  DECREES,  ETC.  591 

In  witness  whereof,  said  T.  Steamship  Co.  has  subscribed 
these  presents  by  its  general  agents  for  the  United  States, 

at  the  city  of ,  on  the day  of ,  in  the  year  one 

thousand  eight  hundred  and  ninety-four. 

Taken  and  acknowledged  in  the  presence  of,  etc. 


No.  624. 
Notice  for  Publication  (i). 

The  United  States  of  America, 

District  of ,  ss. 

On  the day  of ,  1894,  a  libel  was  filed  in  the  dis- 
trict court  of  the  United  States  for  the  district  aforesaid,  by 

A.  B.,  \occupation\^  libellant,  against  the  ship ,  her  tackle, 

sails,  apparel,  furniture,  boats,  and  other  appurtenances,  alleg- 
ing in  substance  that,  etc.,  \here  state  succinctly  the  substance 
of  the  libel^    and  continue  as  follows  f\    and  prays    process 

against  said  vessel,  and dollars  for  wharfage  [or  as  may 

be\  and  that  said  ship ,  her  tackle,  sails,  apparel,  furni- 
ture, boats,  and  other  appurtenances  may  be  condemned  and 
sold  to  pay  such  wharfage,  with  costs,  charges,  and  expenses. 

Now,  therefore,  in  pursuance  of  the  said  monition,  under 
the  seal  of  the  said  court,  to  me  directed  and  delivered,  I  do 
hereby  give  public  notice  to  all  persons  claiming  the  said 

ship  ,  her  tackle,  sails,  apparel,  furniture,  boats,  and 

other  appurtenances,  or  in  any  manner  interested  therein, 
that  they  be  cited  to  appear  before  the  said  district  court,  to  be 

held  at  the  city  of ,  in  and  for  the district  of , 

on  the  first  Tuesday  of next,  at  10  o'clock  in  the  fore- 
noon of  that  day,  provided  the  same  shall  be  the  day  of  ju- 
risdiction, otherwise  on  the  next  day  of  jurisdiction  there- 
after, then  and  there  to  interpose  the  claims  and  to  make 
their  allegations  in  that  behalf.  T.  M., 

R.  X.,  United  States  Marshal. 

Proctor  for  Libellant. 

Dated  at ,  the day  of ,  1894. 

(i)  See  9th  Rule  in  Admiralty. 


592  ADMIRALTY. 

No.  625. 

Notice  of  Motion. 

Messrs.  Y.  &  Y., 

Proctors  for  Respondent. 
Gentlemen : 

You  are  hereby  notified  that  before  his  honor,  G.  W.,  judge 
of  this  court,  at  chambers  in  the  courthouse,  in  the  city  of 

,  on ,  the day  of ,  1894,  at  ten  o'clock  in 

the  forenoon  of  that  day,  a  motion  will  be  made  for  an  order, 
that,  etc.  \_here  state  what  will  be  asked]. 

Yours  very  truly, 

X.  &  X., 

Dated .  Proctors  for  Libellant. 

Service  accepted  this day  of ,  1894. 

Y.  &Y. 


No.  626. 

Affidavit  to  Obtain  Attachment  on  Libel  for  Wages  (i). 

The  United  States  of  America, 
District  of ,  ss. 

On  this day  of ,  1893,  before  me,  at ,  person- 
ally appeared  the  within-named  J.  S.,  and  made  oath  that  he 
has  read  the  foregoing  libel,  and  that  the  matters  stated 
therein  are  just  and  true  as  he  verily  believes,  and  that  the 
said  vessel  is  about  to  proceed  to  sea  within  twenty-four  hours, 
and  before  the  expiration  of  ten  days  after  the  delivery  of  her 
cargo  [or,  that  the  said  vessel  has  left  the  port  of  delivery 
where  the  voyage  ended],  without  paying  him  the  wages  due 
as  aforesaid.  J.  S. 

Subscribed  and  sworn  to  before  me  the  day  first  above- 
mentioned.  J.  N., 

[►S^^/.]  United  States  Commissioner 

in  and  for  the 

District  of . 


ORDERS,  DECREES,  ETC.  593 

No.  627. 

Preliminary  Summons  for  Seamens'  Wages  (i). 

The  United  States  of  America, 
District  of ,  ss. 


To  the  Master  and  Owners  of  the  Ship  [brig,  orj  steamboat, 
<?/r.]  called  the : 

You  are  hereby  summoned  to  appear  before  me,  J.  N., 

[name  and  title  of  officer^  at  my  office.  No. street, 

in  the  city  of ,  on  the day  of ,  1893,  at 

o'clock  —  m.,  then  and  there  to  show  cause,  if  any  you  have, 
why  process  of  attachment- should  not  issue  from  the  district 
court  of  this  district  against  the  above-named  vessel,  her 
tackle,  sails,  apparel,  furniture,  boats,  and  appurtenances, 
according  to  the  course  of  admiralty  courts,  and  answer  the 
claim  of  A.  B.  for  mariner's  wages. 

Given  under  my  hand  this day  of ,  in  the  year  of 

our  Lord  1893.  J.  N., 

[►S^^/.j  U.  S.  Commissioner. 

(i)  See  R.  S.,  Sees.  4546  and  4547. 


No.  628. 

Certificate  of  Magistrate  (i). 

The  United  States  of  America, 
District  of ,  ss. 

I,  R.  S.,  [official  character]^  do  hereby  certify  that  there  is 
in  my  opinion  sufficient  cause  of  complaint  whereupon  to 
found  admiralty  process  at   the  suit  of  A.  B.  for  mariner's 

wages  against  the  ship  [<7r,  brig,  etc.^ ,  her  tackle,  sails, 

apparel,  furniture,  boats,  and  appurtenances,  to  answer  for 
the  wages  of  A.  B.  J.  N., 

Dated  this day  of ,  1893.  [Official  Tiile^ 

(i)  See  R.  S.,  Sees.  4546  and  4547. 


594  ADMIRALTY. 


APPELLATE  PROCEEDINGS. 

No.  629. 

Notice  of  Appeal   in  Admiralty. 
[^Caplzon."] 
Y.  &  Y., 

Proctors  for  Claimant  and  Appellee  : 
Sirs :     Take  notice  that  the  libellant  above-named  hereby 
appeals  to  the  United  States  circuit  court  of  appeals  for  the 

circuit,  from  the  final  decree  entered  herein  on  the 

day  of ,  1894.  X.  &  X., 

Proctors  for  Libellant  and  Appellant. 


Dated 


No.  630. 

Petition  of  Appeal. 

To  the  Honorable  Judges  of  the  United  States  Circuit  Court 
of  Appeals  for  the Circuit: 

A,  B.,  the  libellant  and  appellant  herein,  respectfully 
shows  as  follows : 

PirsL  On  or  about  the day  of ,  1894,  the  libel- 
lant filed  a  libel  in  the  district  court  of  the  United  States  for 

the district  of against  the  above-named  schooner, 

in  a  cause  civil  and  maritime,  to  recover  the  sum  of dol- 
lars for  damages  alleged  to  be  due  the  libellant  from  said 
schooner,  with  interest  and  costs,  as  by  reference  to  said  libel 
will  more  fully  appear. 

Second.  On  or  about  the day  of ,  1894,  the  claim- 
ant duly  appeared  and  filed  his  answer  to  said  libel,  praying 
that  the  libel  be  dismissed  with  costs,  as  by  reference  to  said 
answer  will  more  fully  appear. 


APPELLATE  PROCEEDINGS.  595 

Third.     In  ,   1894,  said  cause  came  on  for   hearing 

before  the  Honorable  G.  W.,  judge  of  the  said  district  court, 

and  such  proceedings  were  had  that  on  the day  of , 

1894,  a  final  decree  was  made  and  entered  in  said  suit, 
whereby  it  was  adjudged  that  the  libel  be  dismissed  and  that 
the  claimants  recover  the  sum  of dollars  as  costs. 

Fourth.  The  above-named  libellant  and  appellant  is  ad- 
vised and  insists  that  said  final  decree  is  erroneous,  in  that 
it  does  not  decree  payment  of  the  libellant's  claim  with  inter- 
est and  costs. 

Fifth.  For  this  and  other  reasons  the  above-named  libel- 
lant and  appellant  appeals  from  said  final  decree  to  the  United 

States  circuit  court  of  appeals  for  the  circuit,  and  on 

said  appeal  intends  to  seek  a  new  decision  on  the  law  and  on 
the  facts,  upon  the  pleadings  and  proofs  in  said  district  court, 
and  iipon  new  pleadings  and  proofs  to  be  introduced  in  this 
court,  and  prays  that  the  record  and  proceedings  aforesaid 
may  be  returned  to  the  United  States  circuit  court  of  appeals 

for  the circuit,  and  that  said  decree  may  be  reversed  and 

the  libellant  be  decreed  payment  of  his  claim  with  interest 
and  costs  in  the  district  court  and  in  this  court. 

X.  &  X., 
Proctors  for  Appellant. 


No.  631. 

Order  for  Mandate  in  Admiralty. 

[Caption.'] 

This  cause  having  come  on  to  be  heard  on  appeal  from 
the  decree  of  the  district  court  of  the  United  States  for  the 

district  of  ,   entered  herein  ,    1894,  now,  on 

motion  of  X.  &'X.,  proctors  for  the  libellant  and  appellant,  it 
is  ordered  that  the  said  decree  be,  and  the  same  hereby  is* 
reversed,  with  costs  of  this  court,  and  that  the  costs  of  the 
district  court  be  apportioned,  and  that  a  mandate  issue  to 
said  district  court  directing  said  court  to  proceed  in  accord- 
ance with  the  opinion  of  this  court. 


596  ADMIRALTY. 

No.  632. 

Mandate  in  Admiralty. 
[Capfz'on.'] 

The  President  of  the  United  States  of  America  to  the  Hon- 
orable the  Judge  of  the  District  Court  of  the  United 
States  for  the District  of ,  Greeting: 

Whereas,  lately  in  the  district  court  of  the  United  States 

for  the district  of ,  before  you  in  a  cause  between 

A.  B,,  libellant  and  appellee,  and  the  steamship  X.,  whereof 
L.  M.  is  claimant  and  appellant,  wherein  the  decree  of  said 
court  is  in  the  words  and  figures  following,  viz.:  [here  state 
the  decree  of  the  district  court\  as  by  the  inspection  of  the 
transcript  of  the  record  of  said  court,  which  was  brought 

into  the  United  States  circuit  court  of  appeals  for  the 

circuit  by  virtue  of  an  appeal  taken  out  by  said  A.  B.,  agree- 
ably to  the  act  of  congress  in  such  case  made  and  provided, 
fully  and  at  large  appears; 

And  whereas,  in  the  present  term  of ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and  ninety-four,  the 
said  cause  came  on  to  be  heard  before  the  United  States  cir- 
cuit court  of  appeals  for  the circuit  on  the  said  tran- 
script of  record,  and  was  argued  by  counsel ; 

On  consideration  whereof,  it  is  is  now  ordered,  adjudged, 
and  decreed  by  this  court  that  the  decree  of  the  district  court 
be,  and  the  same  hereby  is,  affirmed,  with  the  costs  of  this 
court,  amounting  to  the  sum  of dollars. 

You,  therefore,  are  hereby  commanded  that  such  further 
proceedings  be  had  in  said  cause,  in  conformity  with  the 
opinion  of  this  court,  as  according  to  right  and  justice  and 
the  laws  of  the  United  States  ought  to  be  had,  the  said 
appeal  notwithstanding. 

[Add  teste.  See  No.  31,  signed  by  clerk  of  the  court  of 
appeals^ 


APPELLATE  PROCEEDINGS.  597 

No.  633. 
Final  Decree  on  Mandate  in  Admiralty. 

\CapHon.'] 

The  decree  of  this  court  entered  herein  on  the day 

of ,  1894,  having  been  afl&rmed  on  appeal  to  the  United 

States  circuit  court  of  appeals  for  the circuit,  as  appears 

from  the  mandate  of  said  court  filed  herein  the day  of 

,  1894,  now,  on  motion  of  X.  &  X.,   proctors  for  the 

libellant  and  appellee,  it  is  ordered,  adjudged,  and  decreed 

that  the  libellant  above  named  recover  herein  the  sum  of 

dollars  damages,  and  for  the  further  sum  of dollars, 

interest  thereon  from  the  date  of  the  report  of  the  commis- 
sioner herein,  and  the  further  sum  of dollars,  costs  of 

this  court,  and  the  further  sum  of dollars,  costs  of  said 

court  of  appeals,  making  in  all  the  sum  of dollars,  for 

which  sum  the  above-named  vessel,  her  tackle,  etc.,  are 
hereby  condemned. 

And  it  is  further  ordered,  adjudged,  and  decreed  that  the 
stipulation  for  costs  and  value  on  the  part  of  the  claimant 
and  the  sureties  on  the  bond  given  on  appeal  herein,  cause 
the  engagements  of  their  stipulations  and  bond  to  be  per- 
formed, or  show  cause  why  execution  should  not  issue 
against  their  goods,  chattels,  and  lands  in  satisfaction  hereof. 


REMOVAL  FROM  STATE  COURTS. 


No.  634. 

Petition  for  Removal  on  the  Ground  of  Citizenship  (i). 

State  of , 

County  Common  Pleas  Court. 


A.  B.,  Plaintiff,   ^  Petition  for  removal  to  the 

vs.               \       Circuit  Court  of  the  United  States 
C.  D.,  Defendant.  J  for  the District  of . 

Your  petitioner,  C.  D.,  respectfully  shows  to  this  honorable 
court  that  he  is  one  of  the  defendants  in  this  suit,  which  is  of 
a  civil  nature,  and  that  the  matter  and  amount  in  dispute  in 
this  cause  exceeds  the  sum  or  value  of  two  thousand  dollars, 
exclusive  of  interest  and  costs  (2) ;  and 

That  the  controversy  herein  is  between  citizens  of  different 
states ;  that  the  plaintiff,  A.  B.,  was  at  the  time  of  the  com- 
mencement of  this  suit,  and  still  is,  a  citizen  of  the  state  of 

,  residing  at ,  in  said  state,  and  that  your  petitioner, 

C.  D.,  was  at  the  time  of  the  commencement  of  this  suit, 

and  still  is,  a  citizen  of  the  state  of  ,  and  of  no  other 

state,  residing  in  the  city  of ,  in  said  state  (3)  [or^  an  alien, 

namely,  a  subject  of  the  king  of ,  and  now  residing  at 

,  in  the  state  of ,  and  not  a  resident  of  the  state  of 

,  naming  the  state  in  which  the  suit  is  pending  (4),  or  as 

may  be\ ;  and  that  your  petitioner  desires  to  remove  this  suit 
before  the  trial  thereof  into  the  next  circuit  court  of  the 
United  States,  to  be  held  in  the district  of . 

And  your  petitioner  offers  herewith  good  and  sufficient 
surety  for  his  entering  in  the  circuit  court  of  the  United 

598 


REMOVAL   FROM    STATE   COURTS.  599 

States  for^the  district  of ,  on  the  first  day  of  its 

next  session,  a  copy  of  the  record  in  this  suit,  and  for  pay- 
ing all  costs  that  may  be  awarded  by  the  said  circuit  court 
of  the  United  States,  if  said  court  shall  hold  that  this  suit 
was  wrongfully  and  improperly  removed  thereto. 

And  your  petitioner  therefore  prays  that  the  said  surety 
and  bond  may  be  accepted ;  that  this  said  suit  may  be  re- 
moved into  the  next  circuit  court  of  the  United  States,  to 

be  held  in  the district  of ,  pursuant  to  the  statutes 

of  the  United  States  in  such  case  made  and  provided,  and 
that  no  further  proceedings  may  be  had  herein  in  this  court. 

And  he  will  ever  pray.  C.  D. 

Y.  &  Y., 

Attorneys  for  Petitioner. 

(i)  Desty's  Fed.  Proc,  Sec.  98.  The  petition  should  be  filed  in  the 
state  court  within  the  time  allowed  the  defendant  to  plead.  Desty's 
Fed.  Proc,  108 ;  see  also  R.  I.  Nat.  Bank  vs.  Keator  Lumber  Co.,  52 
Fed.  Rep.,  897. 

(2)  See  Foster's  Fed.  Prac,  page  820,  and  cases  cited  in  notes. 

(3)  Desty's  Fed.  Proc,  Sec.  98.  Grace  vs.  Am.  Central  Ins.  Co.,  109 
U.  S.,  278;  Freeman  vs.  Butler,  39  Fed.  Rep.,  i.  Must  allege  that 
the  difference  of  citizenship  existed  when  suit  was  commenced.  Gib- 
son vs.  Bruce,  108  U.  S.,  561 ;  H.  &  T.  R.  R.  Co.  vs.  Shirley,  iii  U.  S., 
358;  Akers  vs.  Sker,  117  U.  S.,  197;  Stevens  vs.  Nichols,  130  U.  S., 
230;  Jackson  vs.  Allen,  132  U.  S.,  27;  Camprelle  vs.  Balbach,  46  Fed. 
Rep.,  81. 

(4)  See  Walker  vs.  O'Neill,  38  Fed.  Rep.,  374 ;  also,  Meyer  et  al.  vs. 
Herrera,  41  Fed.  Rep.,  65 ;  also,  Scott  vs.  Texas  Land  &  Cattle  Co.,  41 
Fed.  Rep.,  225. 


No.  635. 

Verification  of  above  Petition. 


State  of 


County  of ,  ss. 

C.  D.  makes  oath  and  says  that  he  is  the  petitioner  above- 
named  ;  that  the  foregoing  petition  is  true  to  his  own  knowl- 
edge, except  as  to  the  matters  therein  stated  to  be  alleged 


6oo  REMOVAL   FROM   STATE   COURTS. 

Upon  iuformation  and  belief,  and  as  to  those  matters  he  be- 
lieves it  to  be  true  (i).  C.  D.  (2) 

Subscribed  and  sworn  to  before  me  this day  of , 

1894.  J.  N., 

[^Seal.^  Notary  Public  in  and  for . 


(i)  It  is  not  necessary,  but  it  is  better  practice  to  have  the  petition 
verified.  Sweeney  vs.  Cofl&n,  i  Dill.,  73 ;  Allen  vs.  Ryerson,  2  Dill., 
501 ;  Houser  vs.  Clayton,  3  Woods,  273.  See  Removal  Cases,  100  U.  S., 
457,  471.  Kansas  City,  F.  S.  &  M.  R.  R.  Co.  vs.  Daugherty,  138  U.  S., 
298,  303. 

(2)  May  be  signed  by  either  the  petitioner  or  his  attorney  at  law, 
or  in  fact.    Foster's  Fed.  Prac,  page  820,  and  cases  cited  in  notes. 


No.  636. 

Petition  for  Removal  because  of  the  Subject-Matter  of 

the   Suit. 

No.  634  will  form  a  sufficient  guide  except  that  there 
should  be  inserted  a  clause  in  that  form  in  which  all  the  facts 
are  fully  set  forth  to  show  that  the  case  arises  under  the  con- 
stitution or  laws  of  the  United  States,  or  treaties  made  under 
their  authority  ( i). 

(i)  Desty's  Fed.  Proc,  Sees.  96  and  97. 

It  must  appear  clearly  and  unmistakably  from  the  record  that  a  fed- 
eral question  must  be  decided.  Iowa  vs.  Railway  Co.,  33  Fed.  Rep., 
391 ;  see  also  Illinois  vs.  Railway  Co.,  33  Fed.  Rep.,  721. 

No  allegation  of  amount  involved  is  necessary,  because  such  suits, 
whatever  the  amount  involved,  may  be  removed  by  non-resident  de- 
fendant.    See  argtiendo  in  Fales  vs.  Railway  Co.,  32  Fed.  Rep.,  673. 


No.  637. 

Petition  for  Removal  by  one  or  more  of  several  Defendants 
when  there  is  a  Separable  Controversy  (i), 

\Entitle  in  State  Court^ 

\No.  634  will  form  a  sufficient  guide  by  inserting  in  place  of 
the  second  paragraph  in  that  form.,  the  following:^ 

Your  petitioner  further  shows  to  this  honorable  court  that 
there  is  in  said  suit  a  controversy  which  is  wholly  between 


REMOVAL    FROM    STATE    COURTS.  6oi 

citizens  of  different  states,  and  which  can  be  fully  determined 
as  between  them,  to  wit,  a  controversy  between  your  said 
petitioner,  who  avers  that  he  was,  at  the  time  of  the  bring- 
ing of  this  suit,  and  still  is,  a  citizen  of  the  state  of ,  and 

the  said  plaintiff,  [<?r,  A.  B.,  one  of  the  said  plaintiffs,  as  the 
case  may  be^  who,  as  your  petitioner  avers,  was  then,  and  still 

is,  a  citizen  of  the  state  of ;  that  the  said  controversy  is 

of  the  following  nature,  viz.:  \the  nature  of  the  separable 
controversy  to  be  here  briefly  set  out^  and  that  your  petitioner 
and  the  said  plaintiff  are  both  actually  interested  in  said  con- 
troversy. 

(i)  For  examples  of  separable  controversy,  see  Vinal  vs.  Continental 
Co.  34  Fed.  Rep.,  228 ;  Boyd  vs.  Gill,  21  Blatch.,  543,  19  Fed.  Rep.,  145. 
A  case  involving  but  a  single  controversy  can  not  be  removed.  See 
Western  Union  Telegraph  Co.  vs.  Brown,  32  Fed.  Rep.,  337 ;  Weller  vs. 
Tobacco  Co.,  32  Fed.  Rep.,  360. 

A  suit  by  different  judgment  creditors,  whose  judgments  are  not  dis- 
puted, and  set  aside  and  an  assignment  when  the  only  issue  is  as  to  the 
validity  of  the  assignment,  contains  no  separable  controversy.  Reine- 
man  vs.  Ball.  33  Fed.  Rep.,  692.  As  to  what  is  not  separable  controversy, 
see  Anderson  vs.  Appleton,  32  Fed.  Rep.,  855  ;  Richmond  &  D.  R.  Co. 
vs.  Finley,  32  Fed.  Rep.,  641  ;  Reed  vs.  Reed,  31  Fed.  Rep.,  49  ;  Hax  vs. 
Casper,  31  Fed.  Rep.,  499;  Wyeaian  vs.  Horner,  36  Fed.  Rep.,  130; 
Woodrum  vs.  Clay,  33  Fed.  Rep.,  897. 

An  alien  can  not  remove  a  separable  controversy.  King  vs.  Cornell 
106  U.  S.,  395  ;  Woodrum  vs.  Clay,  supra. 


No.  638. 

Bond  on  Removal  (i). 

\Caption7\ 

Know  all  men  by  these  presents  that  we,  C.  D.,  of  the  city 

of ,  in  the  state  of ,  as  principal,  and  E.  F.,  of , 

as  surety,  are  holden  and  stand  firmly  bound  unto  A.  B.  in  the 

penal  sum  of dollars  for  the  payment  whereof  well  and 

truly  to  be  made  unto  the  said  A.  B.,  his  heirs,  representa- 
tives, and  assigns,  we  bind  ourselves,  our  heirs,  representa- 
tives, and  assigns  jointly  and  firmly  by  these  presents. 


6o2  REMOVAL    FROM    STATE   COURTS. 

Upon  condition,  nevertheless,  that  whereas  the  said  C.  D. 

has   filed    his   petition  in  the  county  common  pleas 

court  of    the  state  of   for  the  removal  of  a  certain 

cause  therein  pending,  wherein  the  said  A.  B.  is  plaintiff 
and  the  said  C.  D.  is  defendant,  to  the  circuit  court  of  the 
United  States  in  and  for  the district  of . 

Now,  if  the  said  C.  D.  shall  enter  in  the  said  circuit 
court  of  the  United  States  on  the  first  day  of  its  next 
session  a  copy  of  the  record  in  said  suit,  and  shall  well  and 
truly  pay  all  costs  that  may  be  awarded  by  said  circuit  court 
of  the  United  States,  if  said  court  shall  hold  that  said  suit 
was  wrongfully  and  improperly  removed  thereto,  then  this 
obligation  shall  be  void;  otherwise  it  shall  remain  in  full 
force  and  virtue. 

In  witness  whereof,  we,  the  said  C.  D.  and  E.  F.  have 

hereunto    set  our  hands  and   seals  this  day  of , 

1894.  C.  D.     [Seal.] 

•      E.  F.     [Seal^ 

(i)  The  bond  must  be  filed  with  the  petition.  Austin  vs.  Gagan, 
39  Fed.  Rep.,  626 ;  Kaitel  vs.  Wylie,  38  Fed.  Rep.,  865.  And  may  be 
amended  as  to  form.  Harris  vs.  D.,  L-  &  W.  R.  R.  Co.,  18  Fed.  Rep., 
833;  Beede  vs.  Cheeney,  5  Fed.  Rep.,  388  ;  Deford  vs.  Mehafty,  13  Fed. 
Rep.,  481.  But  not  as  to  matters  of  substance.  Austin  vs.  Gagan, 
above ;  Burdick  vs.  Hale,  7  Biss.,  96. 


State  of 


No.  639. 

Oath  and  Approval  of  Bond. 


County  of ,  ss. 

E.  F.  makes  oath  and  says  that  he  resides  in  \_he  should  be 
a  resident  within  the  jurisdiction  of  the  said  court]  ;  that  he  is 

a  free-holder  therein,  and  is  worth  the  sum  of dollars 

over  and  above  all  property  exempt  from  sale  on  above  exe- 
cution. E.  F. 

Subscribed  and  sworn  to  before  me  this day  of y 

1894.  J.  N., 

[Seal.]  Notary  Public  in  and  for . 

Approved  by  H.  H.,  Judge  of Court. 


REMOVAL   FROM   STATE   COURTS.  603 

No.  640. 

Order  for  Removal. 

\Entille  in  State  Court.'] 

The  defendant  herein  having,  within  the  time  provided  by 
law,  filed  his  petition  for  removal  of  this  cause  to  the  circuit 

court  of  the  United  States  for  the district  of ,  and 

having  at  the  same  time  offered  his  bond  in  the  sum  of 

dollars,  with  E.  F.,  good  and  sufl&cient  surety;  pursuant  to 
statute,  and  conditioned  according  to  law ;  now,  therefore, 
this  court  does  hereby  accept  and  approve  said  bond  and 
accept  said  petition,  and  does  order  that  this  cause  be  re- 
moved for  trial  to  the  next  circuit  court  of  the  United  States 

for  the district  of ,  pursuant  to  the  statute  of  the 

United  States,  and  that  all  other  proceedings  of  this  court 
be  stayed. 


No.  641. 

Notice  of  Removal  (1). 

\Entitle  in  Circuit  Court  of  the  United  States^ 
X.  &  X., 

Attorneys  for  Plaintiff. 

You  are  hereby  notified  that  on  the day  of ,  1894, 

by  an  order  of  the county  common  pleas  court  of  the 

state  of  ,  the  above-entitled  cause  was  duly   removed 

from  the  said  court  to  the  circuit  court  of  the  United  States 

for  the district  of  ,  and  a  transcript  of  the  record 

in  said  cause  was  filed  in  said  circuit  court  of  the  United 

States  on  the day  of ,  1894. 

Y.  &  Y., 

Dated .  Attorneys  for  Defendant. 

Service  accepted  this day  of ,  1894. 

X.  &  X., 
Attorneys  for  Plaintiflf. 

(i)  This  notice  is  not  required  by  the  statute,  but  it  is  better  prac- 
tice to  give  the  opposite  party  notice. 


604  REMOVAL   FROM    STATE   COURTS. 

No.  642. 

Notice  of  Application  for  Removal  on  Account  of  Local 

Prejudice  (i). 

\Entitle  in  State  Court."] 
X.  &  X., 

Attorneys  for  Plaintiff. 

Please  take  notice  that  on  the day  of ,  at  ten 

o'clock  a.  m.,  or  as  soon  thereafter  as  counsel  can  be  heard, 

we  shall  petition  his  honor,  Judge ,  of  the  circuit  court 

of  the  United  States  for  the district  of ,  at  the 

court-rooms  in  the  city  of ,  to  remove  the  above-entitled 

cause  from  the county  common  pleas  court  of  the  state 

of ,  where  it  is  now  pending,  to  the  next  circuit  court  of 

the  United  States,  to  be  held  in  the district  of ,  on 

the  ground  of  local  prejudice.  We  herewith  serve  upon  you 
copy  of  petition  and  affidavits  which  will  be  submitted  to  the 
court  at  that  time.  Y.  &  Y., 

Dated .  Attorneys  for  Defendant. 

Service  accepted  this day  of ,  1894. 

X.  &  X., 
Attorneys  for  Plaintiff. 

(i)  This  notice  should  be  served  upon  the  opposite  party  a  reason- 
able time  before  the  hearing,  when  the  petition  is  presented  to  the  Fed- 
eral Court  in  the  first  instance.  See  Carson  &  R.  Lumber  Co.  vs. 
Holtzolaw,  39  Fed.,  578. 

No.  643. 

Petition  for  Removal   on  Account  of  Local  Prejudice  (i). 

The  Circuit  Court  of  the  United  States  for  the 

District  of . 

A.  B.,  Plaintiff,      ^       Petition  for  removal  from County 

vs.  y  Common  Pleas  Court, 

C.  D.,  Defendant.  J  State  of . 

To  the  Honorable  Judges  of  the  Circuit  Court  of  the  United 

States  for  the District  of : 

Your  petitioner,  C.  D.,  respectfully  shows  to  this  honora- 
ble court  that  A.  B.,  as  plaintiff,  brought  suit  of  a  civil  nature 


REMOVAL   FROM    STATE   COURTS.  605 

in  the county  common  pleas  court  in  the  state  of 


against  your  petitioner,  C.  D.,  and  that  the  matter  and  amount 
in  dispute  in  said  cause  exceeds  the  sum  or  value  of  two 
thousand  dollars  exclusive  of  interest  and  costs. 

That  the  said  controversy  is  between  citizens  of  different 
states ;  that  the  plaintiflf,  A.  B.,  was  at  the  time  of  the  com- 
mencement of  this  suit,  and  still  is,  a  citizen  of  the  state  of 
,  residing  at  ,  in  said  state ;  and  that  your  peti- 
tioner, C.  D.,  was,  at  the  time  of  the  commencement  of  this 

suit,  and  still  is,  a  citizen  of  the  state  of ,  and  of  no 

other  state,  residing  in  the  city  of ,  in  said  state,  and 

that  your  petitioner  desires  to  remove  this  suit  which  is 
now  pending  and  undetermined  in  said  state  court,  before 
the  trial  thereof,  into  the  circuit  court  of  the  United  States 
to  be  held  in  the district  of ;  and 

Your  petitioner  further  shows  unto  this  honorable  court 
that  from  prejudice  and  local  influence  in  favor  of  the 
plaintiff  and  adverse  to  this  defendant  he  will  not  be  able 
to  obtain  justice  in  said  court  or  any  other  state  court  to 
which  said  defendant  may,  under  the  laws  of  the  state, 
have  a  right  to  remove  said  cause  on  account  of  such  prej- 
udice or  local  influences ;  and 

Your  petitioner  offers  herewith  good  and  sufficient  surety 
for  all  costs  that  may  be  awarded  by  this  court,  if  this  court 
shall  hold  that  this  suit  was  wrongfully  and  improperly 
removed  hereto ;  and 

Your  petitioner  therefore  prays  that  the  said  surety  and 
bond  may  be  accepted ;  that  this  suit  may  be  removed 
from  the  said  common  pleas  court  into  the  next  circuit  court 

of  the  United  States  to  be  held  in  the district  of , 

pursuant  to  the  statutes  of  the  United  States  in  such  case 
made  and  provided  ;  and  that  a  certiorari  issue,  and  he  will 
ever  pray.  C.  D. 

Y.  &  Y., 

Attorneys  for  Petitioner. 

\Verijication.     See  No.  635.] 

(i)  See  notes  to  No.  634. 


6o6  REMOVAL    FROM    STATE    COURTS. 

This  petition  must  be  filed  in  the  circuit  court  of  the  United  States, 
and  it  is  safer  practice  to  file  certified  copy  of  it  and  the  order  made 
by  the  judge  in  state  court.  See  Malone  vs.  R.  Ry.  Co.,  35,  Fed.  Rep., 
625,  and  Kaitel  vs.  Wylie  38  Fed.  Rep.,  365. 

It  is  not  settled  how  much  evidence  is  necessary  to  make  it  appear 
to  the  court  that  justice  can  not  be  had  in  the  state  court.  See  Desty's 
Fed.  Proc,  Sec.  99,  ef  seq.\  Foster's  Fed.  Prac,  Sec.  386;  also  in  re 
Pennsylvania  Co.  137  U.  S.,  451.  A  bond  with  good  and  sufficient 
surety  should  be  filed  at  the  same  time.    See  No.  638  for  form  of  bond. 


No.  644. 

Order  for  Removal  on  the  Ground  of  Local  Prejudice  (i). 

[Entitle  in  Circuit  Court  of  the  United  States^ 
It  appearing  to  the  court  from  the  petition  filed  in  this 
cause,  and  the  affidavits  thereto  attached,  that,  from  prejudice 
or  local  influence,  G.  H.,  E.  F.,  and  C.  D.  will  not  be  able  to 

obtain  justice  in  the county  common  pleas  court,  in  the 

state  of ,  or  any  other  state  court  to  which  the  said  peti- 
tioners would  or  could,  under  the  laws  of  the  state  of , 

have  the  right,  on  account  of  such  prejudice  or  local  influ- 
ence, to  remove  this  cause,  and  that  they  are  therefore  enti- 
tled to  have  the  removal  which  they  seek,  it  is  accordingly 
ordered  that  this  cause  be,  and  the  same  is  hereby,  removed 
from  the county  common  pleas  court  to  this  court. 

(i)  This  is  taken  from  the  record  in  Adelbert  College,  etc.,  vs.  Toledo, 
etc.,  Ry.  Co.  47  Fed.,  Rep.,  836. 


No.  645. 

Petition  of  Removal  by  a  Revenue  Officer  Indicted  for 

Murder  (i). 

[Entitle  in  Circuit  Court  of  the  United  States^ 
Your  petitioner,  James  M.  Davis,  would  most  respectfully 
show  to  the  court  that  on  the  twenty-first  day  of  May,  1878, 
at  the  May  term  of  the  circuit  court  of  Grundy  county,  Ten- 
nessee, the  grand  jurors  for  the  state  of  Tennessee,  at  the 


REMOVAL    FROM    STATE    COURTS.  607 

instance  of  E.  M.  Haynes,  as  prosecutor,  indicted  your  peti- 
tioner for  willfully,  premeditatedly,  deliberately,  and  of  his 
malice  aforethought,  killing  one  J.  B.  Haynes,  which  indict- 
ment and  criminal  prosecution  so  instituted  is  still  pending 
against  your  petitioner  in  the  circuit  court  of  Grundy  county, 
within  the  middle  district  of  Tennessee. 

And  he  further  shows  that  no  murder  was  committed  ;  but, 
on  the  other  hand,  the  killing  was  committed  in  his  own 
necessary  self-defense  to  save  his  own  life;  that  at  the  time 
the  alleged  act  for  which  he  was  indicted  was  committed  he 
was,  and  still  is,  an  officer  of  the  United  States,  to  wit,  a 
deputy  collector  of  internal  revenue,  and  the  act  for  which 
he  was  indicted  was  performed  in  his  own  necessary  self- 
defense,  while  engaged  in  the  discharge  of  the  duties  of  his 
office  as  deputy  collector  of  internal  revenue ;  and  he  was 
acting  by  and  under  the  authority  of  the  internal  revenue 
laws  of  the  United  States,  and  was  done  under  and  by  right 
of  his  office,  to  wit,  as  deputy  collector  of  internal  revenue. 
It  is  his  duty  to  seize  illicit  distilleries  and  the  apparatus  that 
is  being  used  for  the  illicit  and  unlawful  distillation  of  spirits, 
and  while  so  attempting  to  enforce  the  revenue  laws  of  the 
United  States,  as  deputy  collector,  aforesaid,  he  was  assaulted 
and  fired  upon  by  a  number  of  armed  men,  and  in  defense  of 
his  life  returned  fire. 

In  view  of  these  facts,  your  petitioner  prays  that  said  cause 
may  be  removed  from  the  circuit  court  of  Grundy  county  to 
the  circuit  court  of  the  United  States  for  the  middle  district 
of  Tennessee  for  trial,  and  that  a  certiorari  issue.  And  as  in 
duty  bound  he  will  ever  pray.  James  A.  Warder, 

Attorney. 

\_Verificalion.     See  No.  646.] 

(i)  Taken  from  opinion  in  Tennessee  vs.  Davis.  100  U.  S.,  257.  See 
R.  S.,  Sec.  643 ;  Desty's  Fed.  Proc.,  Sec.  106. 


6o8  REMOVAL    FROM    STATE    COURTS. 

No.  646. 

Verification  of  above  Petition. 

District  of  Middle  Tennessee, 
County  of  Davidson : 
James  M.  Davis,  being  duly  sworn,  deposes  and  says  that 
he  is  the  petitioner  named  in  the  said  petition ;  that  he  has 
Heard  the  same  read,  and  knows  the  contents  thereof,  and 
that  the  same  is  true  of  his  own  knowledge. 

James  A.  Davis. 
Subscribed  and  sworn  to  before  me  this  Aug.  13,  1878. 
[Seal.]  J.  W.  Campbell, 

U.  S.  Commissioner  for  Middle  Tennessee. 


No.  647. 

Petition  of  Removal  by  a  Revenue  Officer  in  a  Civil 
Action  (i). 

\EnHtle  in  Circuit  Court  of  the  United  States.] 
Your  petitioner,  C.  D.,  respectfully  represents  that  hereto- 
fore,  to  wit,  on  the  day  of ,  the  A.  B.  Railway 

Company,   a  corporation  organized  and  existing  under  the 

laws  of  the  state  of ,  began  a  civil  action  against  him  by 

filing  its  petition  in  the  superior  court  of ,  a  court  of 

record  of  the  state  of  ,  the  said  cause  being  numbered 

on  the  docket  of  said  court ;  that  the  ground  of  action 

and  prayer  in  said  petition  set  forth  is  in  substance  as  follows : 
[If ere  set  forth  in  substance  the  allegations  of  the  petition  in 
the  superior  court!] 

And  your  petitioner  further  represents,  that  at  the  time 
the  said  action  was  begun,  and  at  the  time  the  said  acts 
charged  in  said  petition  are  alleged  to  have  been  done, 
he  was  and  still  is  an  officer  of  the  United  States,  to  wit,  as 

surveyor  of  customs  for  the  port  of ,  as  is  stated  and  set 

forth  in  the  above  petition,  and  of  his  acts  in  connection 
with  the  receipt  and  delivery  of  the  merchandise  described 


REMOVAL   FROM   STATE   COURTS.  609 

in  said  petition  were  done  by  him  under  color  of  his  said 
office ;  and  your  petitioner  further  shows  that  said  action  was 
begun  with  summons  which  was  duly  served  upon  your  peti- 
tioner within  the  said district  of  ,  and  said  action 

has  not  yet  been  tried. 

Wherefore  your  petitioner  prays  that  your  honors  will 
cause  a  writ  of  certiorari  to  issue  to  the  said  superior  court 

of ,  commanding  it  to  send  to  this  honorable  court  the 

record  of  proceedings  had  in  this  cause.  R.  Y., 

Attorney  for  Petitioner. 

(i)  See  R.  S.,  Sec.  643  Desty's  Fed.  Proc.,  Sec.  106,  and  cases  cited. 
Taken  from  the  record  in  Cleveland,  Columbus,  etc.  Ry.  Co.  vs.  Mc- 
Clung,  in  the  Circuit  Court  for  the  Southern  District  of  Ohio. 


No.  648. 

Verification  to  Above  Petition. 

The  United  States  of  America, 
District  of 

I,  C.  D.,  make  solemn  oath  that  the  allegations  made  in 
the  foregoing  petition  are  true,  as  I  verily  believe.      C.  D. 

Subscribed  and  sworn  to  before  me  this day  of , 

1894.  B.  R., 

{Seai:\  Clerk. 

No.  649. 

Certificate  of  Counsel  (1). 

I,  R.  Y.,  as  attorney  and  counselor  at  law  of  the  several 

courts  of  record  of  the  state  of ,  do  hereby  certify  that 

as  counsel  for  the  above-named  petitioner,  I  have  examined 
the  proceedings  against  him,  and  carefully  inquired  into  the 
matters  set  forth  in  his  petition,  and  I  believe  the  same  are 
true.  R.  Y., 

Counsel  for  Petitioner. 

See  note  to  No.  647. 


6lO  REMOVAL   FROM    STATE   COURTS. 

No.  650. 

Notice  of  Motion  to  Remand. 

\Entitle  in  Circuit  Court  of  the  United  States."] 
Y.  &  Y., 

Attorneys  for  Defendant : 

You  are  hereby  notified,  that  on  the day  of ,  1894, 

at  ten  o'clock  a.  m.,  or  as  soon  thereafter  as  counsel  can  be 

heard,  at  the  United  States  court  house  at ,  before  said 

court,  a  motion  will  be  heard  for  an  order  to  remand  the 

above-entitled   cause   to   the    county   common    pleas 

court,  in  the  state  of ,  from  whence  it  came.     A  copy  of 

said  motion,  and  the  affidavits  of  J.  H.,  L.  M.,  and  C.  D., 
which  will  be  read  at  the  said  hearing,  are  herewith  served 
upon  you.  X.  &  X., 

Dated .  Attorneys  for  Plaintiflf. 

Service  accepted  this day  of ,  1894. 

Y.  &  Y., 
Attorneys  for  Defendant. 


No.  651. 

Motion  to  Remand  (i). 

[Entitle  in  the  Circuit  Court  of  the  United  States^ 
And  now  comes  the  plaintiff,  and  moves  this  court  to  re- 
mand the  above-entitled  cause  to  the county  common 

pleas  court,  in  the  state  of ,  on  the  ground  that  this  court 

is  without  jurisdiction  to  hear  and  determine  the  cause. 

(i)  See  Adelbert  College,  etc.,  vs.  Toledo,  etc.  Ry.  Co.  47  Fed.  Rep. 
836,  842. 


No.  652. 

Order  Remanding  Cause. 

This  cause  coming  on  to  be  heard  this day  of , 

1894,  upon  the  motion  of  the  plaintiflf  to  remand  this  cause 
to  the county  common  pleas  court,  in  the  state  of , 


REMOVAI^   FROM    STATE   COURTS.  6ll 

and  upon  affidavits  in  support  of  said  motion,  and  counsel 
for  the  respective  parties  having  been  heard,  and  the  same 
having  been  duly  considered  by  the  court,  it  is  ordered  that 
said  motion  be,  and  the   same  is  hereby  granted,  and  the 

cause  is  hereby  remanded  to  the county  common  pleas 

court  in  the  state  of . 


No  653. 

Certiorari  for  Removal  of  a  Cause  from  a  State  Court. 

The  President  of  the  United  States  of  America  to  the 

County   Common    Pleas   Court  of    the    State  of , 

Greeting : 
It  being  represented  to  us  that  there  is  now  pending  be- 
fore you  a  certain  cause.  No. ,  wherein  A.  B.  is  plain- 
tiff and  C.  D.  is  defendant,  which  cause  was  commenced  in 

the county  common  pleas  court  in  the  state  of ,  by 

A.  B.  against  the  said  C.  D.,  for  the  purpose  of  [se^  out  the 

purpose  and  subject-matter  of  the  suii]^  2in6.  that  on  the 

day  of a  summons  was  issued  out  of  said  court,  and 

that  no  trial  has  yet  been  had  ;  whereas,  the  said  defendant 
has  caused  to  be  filed  in  our  circuit  court  for  the dis- 
trict of his  petition  for  the  removal  of  the  said  cause 

from  the  said  common  pleas  court  to  the  circuit  court  of  the 

United  States  for  the district  of ,  and  a  bond  with 

good  and  sufficient  surety,  according  to  the  statutes  of  the 
United  States  in  such  case  made  and  provided,  and  has  made 
it  appear  to  us  that  from  prejudice  or  local  influence  he  will 
not  be  able  to  obtain  justice  in  such  state  court  or  any  other 
state  court  to  which  the  defendant  may,  under  the  laws  of 
the  state,  have  the  right  to  remove  the  said  cause,  we  are 
willing  to  remove  the  said  cause,  and  the  records  and  pro- 
ceedings therein  should  be  certified  by  the  said  common 
pleas  court  and  removed  into  our  circuit  court  of  the  United 

States  in  and  for  the district  of ,   and    do  hereby 

command  you  to  certify  and  send  the  records  and  proceed- 


6l2  REMOVAL   FROM   STATE   COURTS. 

ings  aforesaid,  with  all  things  concerning  the  same,  to  the 
said  circuit  court  of  the  United  States,  together  with  this 
writ,  so  that  you  may  have  the  same  at  the  United  States 

court-house  in  the  city  of ,  in  the  said  district  of , 

on  the day  of ,  in  the  said  circuit  court,  to  be  then 

and  there  held,  that  the  said  circuit  court  may  cause  to  be 
further  done  thereupon  what  of  right  according  to  the  laws 
of  the  United  States  should  be  done. 
[Add  teste.     See  No.  31.] 


No.  654. 

Marshal  s  Return  of  Certiorari   (i). 

I  hereby  certify,  that  the  within  writ  was  served  personally 

on  S.  R.,  the  clerk  of  the county  common  pleas  courts 

on  the day  of ,  1894,  at  his  office  in  the  city  of , 

and  that  a  true  copy  thereof  was  then  and  there  delivered  to, 
and  left  with,  him.  H.  C, 

Dated .  United  States  Marshal  for  the 

District  of . 

(i)  This  return  should  be  endorsed  upon  the  writ. 


No.  655. 

Return  of  Certiorari  by  the  State  Court. 

\Entitle  in  State  Court.] 

In  obedience  to  the  writ  of  the  certiorari  issued  by  the 

circuit  court  of  the  United  States  for  the  district  of 

,  on  the day  of ,   1894,  and  attached  hereto, 

the  transcript  annexed  hereto  of  the  record  ot  this  court,  with 
copies  of  all  the  papers  and  proceedings  in  the  above-entitled 
cause  filed  and  remaining  of  record  in  this  court,  are  hereby 
certified  and  sent  to  the  said  circuit  court  of  the  United 
States  as  in  the  said  writ  directed. 

Witness,  etc.  \as  in  the  state  court]. 


APPELLATE  PROCEEDINGS. 


No.  656. 

Explanation. 

The  appellate  proceedings,  either  on  writ  of  error,  or  ap- 
peal, to  a  circuit  court  of  appeals  and  to  the  supreme  court 
of  the  United  States  are  practically  the  same.  The  following 
forms  may  therefore  be  used  in  appellate  proceedings  in  a 
circuit  court  of  appeals  or  the  supreme  court  of  the  United 
States,  although  the  individual  forms  are  entitled  in  but  one 
court. 

There  is  much  doubt  whether  the  statute  authorizes  writs 
of  error  to  be  issued  by  the  clerks  of  the  inferior  courts,  and 
that  all  such  writs  should  be  issued  only  by  the  clerk  of  the 
supreme  court  of  the  United  States.  It  is  the  practice,  how- 
ever, when  a  cause  is  taken  from  a  district  or  circuit  court, 
for  the  clerk  of  such  court  to  issue  the  writ  of  error,  but 
when  a  cause  is  taken  from  a  circuit  court  of  appeals,  the 
writ  of  error  is  issued  by  the  clerk  of  the  supreme  court. 

With  reference  to  the  appellate  jurisdiction  of  the  respec- 
tive courts  generally,  see  act  of  March  3rd,  1891,  26th  Stat, 
at  L/.,  826,  supplement  to  the  Revised  Statutes  of  the  United 
States,  Vol.  ist,  page  901. 


613 


6l4  APPELLATE   PROCEEDINGS. 


ON  ^VRIT  OF   ERROR. 

No.  657. 

On  Writ  of  Error  (i). 

The  Circuit  Court  of  the  United  States, 

for  the District  of . 

A.  B.,  Plaintiff,     ^  ^^  ^aw. 

C.  D.,  Defendant,   j        P^*'''°»  ^°'  ^rit  of  Error. 

And   now  comes   A.  B.,  plaintiff,  \or^  defendant],  herein^ 

and  says  that  on  or  about  the day  of ,  this  court 

entered  judgment  herein  in  favor  of  the  defendant  \or^  plain- 
tiff] and  against  this  plaintiff,  \or^  defendant]  in  which  judg- 
ment and  the  proceedings  had  prior  thereunto  in  this  cause 
certain  errors  were  committed,  to  the  prejudice  of  this  plain- 
tiff [(3r,  defendant],  all  of  which  will  more  in  detail  appear 
from  the  assignment  of  errors  which  is  filed  with  this  petition. 
Wherefore  this  plaintiff  [<?r,  defendant]  prays  that  a  writ  of 
error  may  issue  in  this  behalf  to  the  United  States  circuit  court 

of  appeals  for  the circuit,  for  the  correction  of  errors  so 

complained  of,  and  that  a  transcript  of  the  record,  proceed- 
ings, and  papers  in  this  cause,  duly  authenticated,  may  be 
sent  to  the  said  circuit  court  of  appeals.  R.  X., 

Attorney  for  Plaintiff. 

(t)  This  petition  should  be  entitled  and  filed  in  the  court  at  which 
the  trial  was  had,  and  the  assignment  of  errors  should  be  filed  with 
this  petition.  See  nth  Rule  Circuit  Court  of  Appeals  and  Desty's 
Fed.  Proc,  p.  1119. 


ON  WRIT  OF   ERROR.  615 

No.  658. 

Assignment  of  Errors.     (Suit  at  Law.) 

The  Circuit  Court  of  the  United  States, 

for  the District  of . 

A.  B.,  Plaintiff,     I  ^^^^^ 

C.  D.,  Defendant,   j     Assignment  of  Errors. 

The  plaintiff  [or,  defendant]  in  this  action,  in  connection 
with  his  petition  for  a  writ  of  error,  makes  the  following  as- 
signment of  errors  which  he  avers  occurred  upon  trial  of  the 
cause,  to  wit: 

I.  The  court  erred  in  the  rejection  of  evidence  offered  by 
the  plaintiflf,  [or,  defendant]  upon  said  trial  in  the  following 
instances,  to  wit : 

(i)  In  rejecting  portions  of  the  evidence  of  W.  B.,  given 
by  deposition,  which  evidence  was  in  substance  [here  set 
forth  the  substance  of  the  depositio}i\. 

(2)  In  excluding  from  the  testimony  of  L.  H.,  a  witness 
produced  in  court  and  sworn  on  behalf  of  the  plaintiflf  [or, 
defendant],  this  testimony  being  in  substance  [set  forth  in 
substance  what  he  testified^. 

II.  The  court  erred  in  the  admission  of  evidence  offered 
by  the  defendant  [or,  plaintiflf]  in  the  following  instances, 
to  wit : 

(i)  In  the  testimony  given  by  J.  S.,  in  substance  [set  forth 
the  substance  of  the  testimony]. 

(2)  In  the  testimony  given  by  the  defendant  [or,  plaintiflf] 
as  a  witness  in  his  own  behalf  upon  the  trial,  in  substance 
[set  forth  the  substance  of  the  testimony] ;  also,  in  answering 
the  questions  put  to  him  by  his  own  attorney  [^uote  the  ques- 
tiof{\  by  saying  [quote  the  answer\. 

III.  The  court  erred  in  making  the  charge  to  the  jury  in 
refusing  to  state  propositions  requested  by  the  plaintiflf  [or, 
defendant]  in  the  following  instances,  to  wit  [set  forth  in 
full  the  propositions]. 


6l6  APPELLATE    PROCEEDINGS. 

IV.  The  court  erred  in  using  the  following  language  in 
the  charge  to  the  jury  [sel  forth  that  part  of  the  charge  in 
which  error  is  charged.^ 

V.  The  court  erred  in  over-ruling  the  motion  of  plaintiff 
[or,  defendant]  for  a  new  trial. 

VI.  The  court  erred  in  entering  judgment  in  favor  of  the 
defendant  [or,  plaintifi],  and  against  the  plaintiff  [or,  de- 
fendant]. X.  &  X., 

Attorneys  for  Plaintiff  [or,  Defendant]. 


No.  659. 

Assignment  of  Errors  in  the  Supreme  Court  of  the  United 

States. 

[Caption.'] 

Of term,  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and . 

Afterwards,  to  wit,  on  the  first  Monday  of ,  in  this 

same  term,  before  the  justices  of  the  supreme  court  of  the 
United  States,  at  the  capitol,  in  the  city  of  Washington, 
comes  the  said  A.  B.,  by  R.  Y.,  his  attorney,  and  says  that  in 
the  record  and  proceedings  aforesaid,  there  is  manifest  error 
in  this,  to  wit,  that  the  declaration  aforesaid,  and  the  matters 
therein  contained,  are  not  sufiicient  in  law  for  the  said  C.  D. 
to  have  or  maintain  his  aforesaid  action  thereof  against  the 
said  A.  B. ;  there  is  also  error  in  this,  to  wit,  that  by  the  record 
aforesaid,  it  appears  that  the  judgment  aforesaid  given  was 
given  for  the  said  C.  D.  against  the  said  A.  B.,  whereas,  by 
the  law  of  the  land,  the  said  judgment  ought  to  have  been 
given  for  the  said  A.  B.  against  the  said  C.  D.,  and  the  said 
A.  B.  prays  the  judgment  aforesaid  may  be  reversed,  an- 
nulled, and  altogether  held  for  nothing,  and  that  he  may  be 
restored  to  all  things  which  he  has  lost  by  occasion  of  the 
said  judgment,  etc.  R.  Y., 

Attorney  for  Plaintiff. 


ON   WRIT   OF   ERROR.  617 

No.  660. 

Joinder  in  Error. 

[^Capiton.'] 

And  afterwards,  to  wit,  on  the  first  Monday  of ,  in  the 

term,  in  the  year  of  our  Lord  one  thousand  eight  hun- 


hundred  and ,  the   said  C.  D.,  by  R.  X.,  his   attorney, 

freely  comes  here  into  court,  and  says  that  there  is  no  error, 
either  in  the  record  and  proceedings  aforesaid,  or  in  the  giv- 
ing of  the  judgment  aforesaid ;  and  he  prays  that  the  said 
supreme  court  of  judicature,  before  the  justices  thereof  now 
here,  may  proceed  to  examine  as  well  the  record  and  pro- 
ceedings aforesaid,  as  the  matters  aforesaid  above  assigned 
for  error ;  and  that  the  judgment  aforesaid,  in  form  as  afore- 
said given,  may  be  in  all  things  affirmed,  etc.         R.  X., 

Attorney  for  Defendant. 


No.  661. 

Order  allowing  Writ  of  Error. 

The  Circuit  Court  of  the  United  States, 
for  the District  of . 

A.  B.,  Plaintiff,      ^ 

vs:  V  At  Law.     No. . 

C.  D.,  Defendant.  J 

This day  of ,  came  the  plaintiff  [or,  defendant]  by 

his  attorney,  and  filed  herein  and  presented  to  the  court  his 
petition,  praying  for  the  allowance  of  a  writ  of  error  intended 
to  be  urged  by  him,  praying,  also,  that  a  transcript  of  the 
record  and  proceedings  and  papers  upon  which  the  judgment 
herein  was  rendered,  duly  authenticated,  may  be  sent  to  the 

United  States  circuit  court  of  appeals  for  the judicial 

circuit,  and  that  such  other  and  further  proceedings  may  be 
had  as  may  be  proper  in  the  premises. 

On  consideration  whereof,  the  court  does  allow  the  writ  of 
error  upon  the  plaintiff  [^r,  defendant]  giving  bond  according 

to  law,  in  the  sum  of dollars,  which  shall  operate  as  a 

supersedeas  bond. 


6l8  APPELI.ATE   PROCEEDINGS. 

No.  662. 

Bond  on  Writ  of  Error  or  Appeal. 

[Caption.'] 

Know  all  men  by  these  presents,  that  we,  A.  B.  as  princi- 
pal, and  J.  S.  and  L.  B.,  as  sureties,  are  held  and  firmly 
bound  unto  the  defendant,  C.  D.,  in  the  full  and  just  sum  of 

dollars  to  be  paid  to  the  said  defendant,  C.  D.,  his  certain 

attorneys,  executors,  administrators,  or  assigns :  to  which  pay- 
ment, well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs, 
executors,  and  administrators,  jointly  and  severally,  by  these 

presents.     Sealed  with  our  seals,  and  dated  this day  of 

,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  . 


Whereas,  lately  at  a  circuit  court  of  the  United  States  for 

the district  of ,  in  a  suit  depending  in  said  court, 

between  A.  B.  plaintiff  and  C.  D.  defendant,  a  judgment  [or^ 
decree,  as  may  be\  was  rendered  against  the  said  A.  B.,  and 
the  said  A.  B.  having  obtained  a  writ  of  error  [or  appeal,  as 
may  be\  and  filed  a  copy  thereof  in  the  clerk's  office  of  the 
said  court  to  reverse  the  judgment  \or^  decree]  in  the  aforesaid 
suit,  and  a  citation  directed  to  the  said  C.  D.  citing  and  ad- 
monishing him  to  be  and  appear  at  a  session  of  the  United 
States  circuit  court  of   appeals  for  the  sixth  circuit,  to   be 

holden  at  the  city  of ,  in  said  circuit,  on  the day  of 

next. 

Now,  the  condition  of  the  above  obligation  is  such,  that  if 
the  said  A.  B.  shall  prosecute  said  writ  of  error  \or^  appeal,  as 
may  be\  to  effect  and  answer  all  damages  and  costs  if  he  fail 
to  make  the  said  plea  good,  then  the  above  obligation  to  be 
void,  else  to  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  presence  of 

S.  S.  A.  B.  {Seal] 

T.  T.  J.  S.    ISeal] 

Approved  by  L.  B.  [5i^a/] 

H.  F., 

Circuit  Judge. 


ON   WRIT   OF   ERROR.  619 

No  663. 

Writ  of  Error. 

The  United  States  Circuit  Court  of  Appeals, 

for  the Circuit. 

The  United  States  of  America, 

Judicial  Circuit,  ss. 

The  President  of  the  United  States, 

To  the  Honorable  Judge  of  the  District  [or.  Circuit]  court  of 
the  United  States  for  the District  of ,  Greeting  : 

Because  in  the  record  and  proceedings,  as  also  in  the  ren- 
dition of  the  judgment,  of  a  plea  which  is  in  the  said  district 
[or,  circuit]  court,  before  you,  or  some  of  you,  between  A,  B., 
plaintiflf,  and  C.  D.,  defendant,  a  manifest  error  hath  hap- 
pened, to  the  great  damage  of  the  said  A.  B,,  plaintiflf,  [<7r, 
C.  D.,  defendant],  as  by  his  complaint  appears,  we  being 
willing  that  error,  if  any  hath  been,  should  be  duly  corrected, 
and  full  and  speedy  justice  done  to  the  parties  aforesaid  in 
this  behalf,  do  command  you,  if  judgment  be  therein  given, 
that  then  under  your  seal,  distinctly  and  openly,  you  send 
the  record  and  proceedings  aforesaid,  with  all  things  concern- 
ing the  same,  to  the  United  States  circuit  court  of  appeals 

for  the  circuit,  together   with    this  writ,  so   that  you 

have  the  same  at  — : — ,  in  said  circuit,  on  the  (i) day  of 

next,  in  the  said  circuit  court  of  appeals,  to  be  then  and 

there  held,  that  the  record  and  proceedings  aforesaid  being 
inspected,  the  said  circuit  court  of  appeals  may  cause  further 
to  be  done  therein  to  correct  that  error,  what  of  right,  and 
according  to  the  laws  and  customs  of  the  United  States, 
should  be  done. 
H.  F., 

U.  S.  District  [or,  Circuit]  Judge. 

[Add  teste  according  to  court  issuing  the  writ.  See  Nos.  30 
««^3i.] 

(i)  See  also  No.  58  and  note.  Not  exceeding  thirty  days  from  sign- 
ing the  citation. 


620  APPELLATE    PROCEEDINGS. 

No.  664. 

Writ  of  Error  to  State  Court. 

The  United  States  of  America,  ss. 
The  President  of  the  United  States  of  America  to  the  Hon- 
orable the  Judges  of  the  Supreme  Court  of  the  State  of 
,  Greeting: 

Because  in  the  record  and  proceedings,  as  also  in  the  ren- 
dition of  the  judgment,  of  a  plea  which  is  in  the  said  supreme 

court  of  the  state  of ,  before  you,  or  some  of  you,  being 

the  highest  court  of  law  or  equity  of  the  said  state  in  which 
a  decision  could  be  had  in  the  said  suit  between  A.  B.  and  C. 
D.,  wherein  was  drawn  in  question  the  validity  of  a  treaty  or 
statute  of,  or  an  authority  exercised  under,  the  United  States, 
and  the  decision  was  against  their  validity  ;  or  wherein  was 
drawn  in  question  Ihe  validity  of  a  statute  of,  or  an  authority 
exercised  under,  said  state,  on  the  ground  of  their  being  re- 
pugnant to  the  constitution,  treaties,  or  laws  of  the  United 
States,  and  the  decision  was  in  favor  of  such,  their  validity ; 
or  wherein  was  drawn  in  question  the  construction  of  a 
clause  of  the  constitution,  or  of  a  treaty,  or  statute  of,  or  com- 
mission held  under,  the  United  States,  and  the  decision  was 
against  the  title,  right,  privilege,  or  exemption  specially  set 
up  or  claimed  under  such  clause  of  the  said  constitution, 
treaty,  statute,  or  commission,  a  manifest  error  hath  hap- 
pened, to  the  great  damage  of  the  said  C.  D.,  as  by  his  com- 
plaint appears,  we  being  willing  that  error,  if  any  hath 
been,  should  be  duly  corrected,  and  full  and  speedy  justice 
done  to  the  parties  aforesaid  in  this  behalf,  do  command  you, 
if  judgment  be  therein  given,  that  then  under  your  seal,  dis- 
tinctly and  openly,  you  send  the  record  and  proceedings 
aforesaid,  with  all  things  concerning  the  same,  to  the  su- 
preme court  of  the  United  States,  together  with  this  writ,  so 

that  you  have  the  same  at  Washington  on  the day  of 

,  1894  (i),  in  the  said  supreme  court,  to  be  then  and 

there  held,  that,  the  record  and  proceedings  aforesaid  being 


ON   WRIT   OF   ERROR.  621 

inspected,  the  said  supreme  court  may  cause  further  to  be 
done  therein,  to  correct  that  error,  what  of  right  and  accord- 
ing to  the  laws  and  customs  of  the  United  States  should  be 
done. 

Witness  the  Hon.  Melville  W.  Fuller,  Chief  Justice 

[5^^:/.]  of  the  said  supreme  court,  the day  of , 

in  the  year  of  our  Lord .       J.  McK., 

Clerk  of  the  Supreme  Court  of  the 
Allowed  by  United  States. 

Horace  Gray, 

Justice. 

(i)  Not  exceeding  thirty  days  from  the  day  of  signing  (see  8th  U.  S. 
Supreme  Court  Rule),  except  where  time  is  extended  to  sixty  days, 
(see  9th  U.  S.  Supreme  Court  Rule,  clause  4.) 


No.  665. 

Judgment  Error  to  State  Court. 

[Caption.'] 

In  Error  to  the  Supreme  Court  of  the  State  of  - 


This  cause  came  on  to  be  heard  on  the  transcript  of  the 

record  from  the  supreme  court  of  the  state  of ,  and  was 

argued  by  counsel. 

On  consideration  whereof,  it  is  now  ordered  and  adjudged 
by  this  court,  that  the  decision  of  the  said  supreme  court  in 
this  cause  be,  and  the  same  is,  hereby  affirmed  [or  as  may  be]. 


No.  666. 

Return  by  the  Clerk  on  Writ  of  Error  (i). 

The  United  States  of  America, 

Judicial  Circuit, 

District  of ,  ss. 


In  pursuance  of  the  command  of  the  writ  of  error  within, 
I,  B.  R.,  clerk  of  the  district  [or,  circuit]  court  of  the  United 
States  for  the district  of ,  herewith  transmit  a  true 


622  APPELLATE  PROCEEDINGS. 

copy  of  the  record,  bill  of  exceptiorfs,  assignment  of  errors, 
and  all  proceedings  in  this  case  of  A.  B.  vs.  C.  D.  lately 
pending  in  the  district  [or^  circuit]  court  of  the  United  States 

for  the district  of ,  under  my  hand  and  seal  of  said 

court. 

Witness  my  official  signature,  and  the  seal  of  said  circuit 

court,  at  the  city  of ,  in  said  district,  this day  of 

,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and ,  and  of  the  independence  of  the  United  States  of 

America  the  one  hundred  and .  B.  R., 

[Seal^  Clerk  of  the  District  [or.  Circuit] 

Court  of  the  United  States 
for  the District  of . 

(i)  The  transcript  should  be  annexed  to  this  certificate  or  return. 


No.  667. 

Citation  (i). 

The  United  States  Circuit  Court  of  Appeals, 

for  the Circuit. 

The  United  States  of  America, 

Judicial  Circuit,  ss. 

To  C.  D.,  Greeting : 

You  are  hereby  cited  and  admonished  to  be  and  appear  at 
a  session  of  the  United  States  circuit  court  of  appeals  for  the 

circuit,  to  be  holden  at  the  city  of ,  in  said  circuit, 

on  the (2)  day  of next,  pursuant  to  a  writ  of  error 

filed  in  the  clerk's  office  of  the  district  [or,  circuit]  court  of 

the  United  States  for  the district  of ,  wherein  A.  B. 

is  plaintiff  in  error,  and  you  are  defendant  in  error,  to  show 
cause,  if  any  there  be,  why  the  judgment  rendered  against 
the  said  plaintiff  in  error,  as  in  the  said  writ  of  error  men- 
tioned, should  not  be  corrected,  and  why  speedy  justice 
should  not  be  done  to  the  parties  in  that  behalf. 


ON   WRIT   OF   ERROR.  623 

Witness  the  Honorable  Melville  W.  Fuller,  Chief 

Justice  of  the  United  States,  this  day  of 

,  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and ,  and  of  the  independence  of 

the  United  States  of  America  the  one  hundred 

and .  H.  F., 

U.  S.  Circuit  Judge. 

(i)  This  form  will  furnish  a  suflScient  guide  in  case  of  an  appeal. 
See  also  Nos.  59  and  60. 

(2)  Not  exceeding  thirty  days  from  the  day  of  signing. 


No.  668. 

Acceptance  of  Service  of  Citation  by  Attorney. 

I  hereby,  this day  of ,  accept  due  personal  service 

of  this  citation  on  behalf  of  C.  D.  and  W.  L.,  appellees. 

Y.  &  Y., 
Solicitors  for  Appellees. 


No.  669. 

Affidavit  of  Service  of  Citation  (i). 


State  of 


County  of ,  ss. 

On  this  day  of ,  1894,  personally  appeared  be- 
fore me,  a  notary  public  in  and  for  said  county, ,  and 

made  oath  that  he  delivered  a  copy  of  within  citation  to 
CD. 

Sworn  to  and  subscribed  before  me  this day  of , 

1894. 

J.N., 

[^SealJ]  Notary  Public  in  and  for  the  State 

and  County  aforesaid. 

(i)  This  affidavit  may  be  used  when  service  is  not  accepted.    See 
No.  256. 


624  APPELLATE  PROCEEDINGS. 

No.  670. 

Judgment. 

The  United  States  Circuit  Court  of  Appeals, 

for  the Circuit. 

No. .  Term,  189—. 

A.   B.       ^ 

vs.  >     Judgment. 

C.  D.      j 
Error  to  the  District  [<?r.  Circuit]  Court  of  the  United  States 

for  the District  of : 

This  cause  came  on  to  be  heard  on  the  transcript  of  the 
record  from  the  district   [<?r,   circuit]  court   of   the  United 

States  for  the  district  of  ,  and  was  argued    by 

counsel. 

On  consideration  whereof,  it  is  now  here  ordered  and  ad- 
judged by  this  court  that  the  judgment  of  the  said  district 
\or^  circuit]  court  in  this  cause  be  and  the  same  is  hereby 
affirmed  \or^  reversed,  as  may  be\  and  this  cause  is  remanded 
for  further  proceedings  to  be  had  in  said  district  [<?r,  circuit] 
court  in  accordance  with  this  judgment. 


ON   APPEAL.  625 


ON  APPEAL. 

No.  671. 

Petition   on   Appeal  (i). 
The  Circuit  Court  of  the  United  States,  \        In  Equity. 


for  the District  of 


1         InE 

/         No. 


The  above-named   plaintiff,    [or,   defendant],    conceiving 
himself  aggrieved  by  the  decree  made  and  entered  on  the 

day  of ,  in  the  above-entitled  cause,  does  hereby 

appeal    from  said   order  and  decree   to  the    United    States 

circuit  court  of  appeals  for  the circuit,  for  the  reasons 

specified  in  the  assignment  of  errors,  which  is  filed  here- 
with, and  he  prays  that  this  appeal  may  be  allowed,  and  that 
a  transcript  of  the  record,  proceedings,  and  papers  upon 
which  said  order  was  made,  duly  authenticated,  may  be  sent 

to  the  United  States  circuit  court  of  appeals  for  the 

circuit.  Y.  &  Y., 

Dated .  Attorneys  for  Plaintiff. 

The  foregoing  claim  of  appeal  is  allowed. 

H.  F., 

Dated .  Circuit  Judge. 

(i)  See  note  No.  657. 


No.  672. 

Assignment  of  Error   on  Appeal  (i). 

The  Circuit  Court  of  the  United  States, 

for  the District  of . 

In  Equity. 
No. . 


Assignment  of  Error. 
And  now,  on  the day  of ,  came  the  said  plain- 
tiff, by  X.  &  X.,  his  solicitors,  and   says   that  the  decree  in 


626  APPELLATE  PROCEEDINGS. 

said  cause  is  erroneous  and  against  the  just  rights  of  said 
plaintiff,  for  the  following  reasons : 

First.  Because  the  evidence  showed  that  the  mortgages 
in  question  were  given  to  hinder,  delay,  and  defraud  the 
creditors  of  the  P.  F.  Company. 

Second.  Because  the  evidence  showed  that  the  said  mort- 
gages amounted  to  and  were  in  fact  an  assignment  for  the 
benefit  of  creditors,  and  were  invalid  so  far  as  they  under- 
took to  make  preferences. 

Third.  Because  the  evidence  showed  that  the  said  mort- 
gages amounted  to  and  were  in  fact  an  assignment  for  the 
benefit  of  creditors,  and  were  invalid,  because  they  provided 
for  returning  the  surplus  to  the  mortgagor  before  all  its  debts 
were  paid. 

Fourth.  Because  the  evidence  showed  that  the  said  mort- 
gages were  preferential  securities,  given  by  the  directors  and 
managers  of  an  insolvent  corporation  to  secure  debts  on 
which  they  were  personally  liable,  in  violation  of  their  fidu- 
ciary duty  in  the  premises. 

Wherefore  the  said  plaintiffs  pray  that  the  said  decree  be 
reversed,  and  that  the  said  court  may  be  directed  to  enter  a 
decree  in  accordance  with  the  prayer  of  the  bill. 

X.  &  X., 
Solicitors  for  Plaintiffs. 

(i)  Taken  from  the  transcript  of  record  in  Brown  vs.  The  Grand 
Rapids  Parlor  Furniture  Company  in  the  Circuit  Court  of  Appeals  for 
the  Sixth  Circuit. 


No.  673. 

Bond  on  Appeal. 
For  form,  see  No.  662. 


ON  APPEAL.  627 

No.  674. 

Citation  on  Appeal. 

No.  667  will  furnish  sufficient  guide  by  substituting  "ap- 
peal" for  "writ  of  error,"  and  "decree"  for  "judgment" 
therein. 

See  also  Nos.  59  and  60. 

No.  675. 
Service  of  Citation. 
Consult  Nos.  668  and  669. 


No.  676. 

Decree. 

The  United  States  Circuit  Court  of  Appeals, 

for  the  Circuit. 

No. .  —  Term,  189 — . 

A.  B.,  Appellant,  ^ 

vs.  V    Decree. 

C.  D.,  Appellee,    j 

Appeal  from  the  district  [or^  circuit]  court  of  the  United 

States  for  the district  of . 

This  cause  came  on  to  be  heard  on  the  transcript  of  the 
record  from  the  district  [or,  circuit]  court  of   the  United 

States  for  the  district  of  ,  and  was  argued  by 

counsel. 

On  consideration  whereof,  it  is  now  here  ordered,  ad- 
judged, and  decreed  by  this  court,  that  the  decree  of  the 
said  district  [or,  circuit]  court  in  this  cause  be,  and  the  same 
is,  hereby  affirmed  [or,  reversed,  as  may  be\,  and  this  cause  is 
hereby  remanded  for  further  proceedings  to  be  had  in  said 
district  [<7r,  circuit]  court  in  accordance  with  this  decree. 


628  APPELLATE  PROCEEDINGS. 

No.  677. 

Decree  Annulling  Former  Decree  and  Revoking  a 
Mandate  (i). 
[^Caption.'] 

On  consideration  of  the  motion  made  by  Mr.  S.,  on  a  prior 
day  of  the  present  term  of  this  court,  to  wit,  on  Monday,  the 
day  of  ,  and  of  the  arguments  of  counsel  there- 
upon had,  as  well  against  as  in  support  of  said  motion,  it  is 
now  here  ordered,  adjudged,  and  decreed  that  the  judgment 
and  decree  of  this  court,  rendered  in  the  above-entitled  cause, 

on.  the  day  of ,  1894,  be,  and  the  same  is  hereby 

declared  utterly  null  and  void;  and  that  the  mandate  of  this 
court  directed  to  the  judges  of  said  circuit  court  in  this  cause 
be,  and  the  same  is,  hereby  revoked.  And  it  is  also  now  here 
further  ordered  that  the  clerk  of  this  court  do  forthwith  send 
to  the  judges  of  the  circuit  court  of  the  United  States  for 

the district  of ,  a  copy  of  this  order  of  the  court, 

under  the  seal  of  this  court,  together  with  a  copy  of  the 
opinion  of  this  court  pronounced  this  day. 

(i)  Ex  parte  Crenshaw,  15  Pet.,  124. 


No.  678. 

Order  and  Decree  where  the  Court  has  no  Juris- 
diction (i). 
\Caption^ 

This  cause  came  on  to  be  heard  on  the  transcript  of  the 
record  from  the  circuit  court  of  the  United  States  for  the 
district  of ,  and  was  argued  by  counsel.  On  con- 
sideration whereof,  it  is  the  opinion  of  this  court  that  said 
circuit  court,  from  which  this  cause  was  removed,  had  no 
jurisdiction  of  this  cause,  and  that  consequently  this  court 
has  not  jurisdiction  but  for  the  purpose  of  reversing  the  de- 
cree of  said  circuit  court.  Whereupon  it  is  now  here  ordered 
and  decreed  by  this  court  that  the  decree  of  the  said  circuit 
court,  entertaining  jurisdiction  of  the  cause,  be,  and  the  same 


ON   APPEAL.  629 

is,  hereby  reversed  for  the  want  of  jurisdiction  in  that  court ; 
and  that  this  appeal  be,  and  the  same  is,  hereby  dismissed 
for  the  want  of  jurisdiction ;  and  that  this  cause  be,  and  the 
same  is,  hereby  remanded  to  the  said  circuit  court,  with 
directions  to  proceed  therein  in  conformity  to  the  opinion 
of  this  court. 

(i)  Cutter  vs.  Rae,  7  How.,  737. 


No.  679. 

Decree  of  Dismissal  Framed  to  Prevent  Prejudice. 

[Caption^ 

This  cause  came  on  to  be  heard  on  the  transcript  of  the 
record  from  the  circuit  court  of  the  United  States  for  the 

district  of ,  and  was  argued  by  counsel ;  on  consideration 

whereof  this  court  is  of  opinion  that  the  decree  of  the  cir- 
cuit court  ought  to  have  shown  that  the  bill  was  dismissed 
because  the  deed  therein  mentioned,  being  void  at  law  for 
matter  apparent  on  its  face,  the  plaintiff  had  not  shown  any 
circumstances  which  disclosed  a  case  proper  for  the  inter- 
ference of  a  court  of  equity  to  relieve  against  such  void 
deed.  And  this  court  is  further  of  opinion  that  so  much  of 
the  said  decree  as  dismisses  the  bill  with  costs  is  erroneous, 
and  ought  to  be  reversed.  This  court  doth  therefore  reverse 
and  annul  the  said  decree,  and  direct  that  the  case  be  re- 
manded to  the  said  circuit  court  with  directions  to  modify 
the  same  according  to  the  principles  of  this  decree. 

No.  680. 

Appeals  in  Admiralty. 

For  form  of  Notice,  Petition,  Order  for  Mandate,  and  Man- 
date on  Appeal,  in  Admiralty,  see  Nos.  629  to  633. 


630  APPEI<LATE   PROCEEDINGS. 


MISCELLANEOUS  ENTRIES,  ORDERS,  ETC. 

No.  681. 

,  Stipulation  Reducing  Record. 

The  Circuit  Court  of  the  United  States,  for  the 

District  of . 

A.  B.,  Plaintiflf, 

vs. 
C.  D.,  Defendant. 

In  the  above-entitled  case,  it  is  hereby  stipulated  by  the 
solicitors  for  the  parties  thereto  that  if  an  appeal  be  taken, 
the  clerk,  in  making  a  transcript  of  the  record  may  omit 
therefrom  the  following  papers  and  records,  to  wit,  [here  set 
forth  the  papers  and  records  by  name  which  are  to  be  omitted^ 
and  that  an  order  may  be  entered  if  the  same  to  the  court 
shall  seem  proper,  in  accordance  with  this  stipulation. 
Dated .  [  To  be  signed  by  all  the  solicitors^ 


No.  682. 

Appearance  (i). 

The  United  States  Circuit  Court  of  Appeals, 

for  the Circuit. 

No. .  Term,  189  — -. 

A.  B.,  Plaintiff  in  Error  \or^  Appellant], 
vs. 
C.  D.,  Defendant  in  Error  [<?r,  Appellee]. 

The  clerk  will  enter  my  appearance  as  counsel  for  the  \as 
may  be] .  R.  X. 

( I )  This  must  be  signed  by  a  member  of  the  bar  of  the  Supreme 
Court  of  the  United  States  or  of  any  Circuit  Court  of  the  United 
States.  In  the  Supreme  Court,  must  be  signed  by  individual  (not 
firm)  name,  and  by  one  who  is  a  member  of  the  bar  of  that  court. 


MISCEI^LANKOUS    ENTRIES,  ORDERS,  ETC.  63 1 

No.  683. 

Receipt  for  Record. 
[Caption^ 

Received  this day  of ,  from  the  clerk,  a  copy  of 

the  record  herein  as  counsel  for  the  defendant. 

R.Y, 

Counsel  for  Defendant. 

No.  684. 

Certificate  of  Questions  by  Circuit  Judges  to  the 
Supreme  Court. 

The  United  States  Circuit  Court  of  Appeals, 

for  the Circuit. 

A.  B.,  Appellant,^ 

vs.        y 

C.  D.,  Appellee,  j 

Appeal  from  the  Circuit  Court  of  the  United  ^tates  for  the 
district  of . 


This  cause  coming  on  for  hearing  before  the  court,  after 
full  argument,  it  is  ordered,  in  view  of  the  important  ques- 
tions arising  upon  the  record,  and  the  doubt  which  the  court 
have  as  to  the  correct  decision  thereof,  that  [  three'\  questions 
arising  on  said  appeal  shall  be  certified  in  the  Supreme 
Court  of  the  United  States  for  its  instruction  thereon,  and 
that  accompanying  said  questions  there  shall  also  be  certi- 
fied a  statement  from  which  such  questions  can  be  under- 
stood; which  statement  and  questions  are  as  follows:  \^here 
set  forth  statement  and  questions  infull^ 

\Signed  by  all  the  Judges^ 


No.  685. 
Writ  of  Certiorari  (i). 
The  United  States  of  America,  ss. 
The  President  of  the  United  States  of  America,  to  the  Hon- 
orable the  Judges  of  the  United  States  Circuit  Court  of 

Appeals  for  the Circuit,  Greeting : 

Being  informed  that  there  is  now  pending  before  you  a 
suit  in  which  A.  B.  is  plaintiff  in  error  [<7r,  appellant]  and  C. 


632  APPEI.I.ATE    PROCEEDINGS. 

D.  is  defendant  in  error  [<9r,  appellee],  whicli  suit  was  re- 
moved into  the  said  circuit  court  of  appeals  by  virtue  of  writ 
of  error  to  [<?r,  appeal  from]  the  district  [or,  circuit]  court 

of  the  United  States  for  the district  of ,  and  we, 

being  willing,  for  certain  reasons,  that  the  said  cause  and  the 
record  and  proceedings  therein  should  be  certified  by  the  said 
circuit  court  of  appeals  and  removed  into  the  supreme  court 
of  the  United  States,  do  hereby  command  you  that  you  send 
without  delay  to  the  said  supreme  court,  as  aforesaid,  the 
record  and  proceedings  in  said  cause,  so  that  the  said  supreme 
court  may  act  thereon  as  of  right  and  according  to  law  ought 
to  be  done. 

Witness  the  Honorable  Melville  W.  Fuller,  Chief 

[Seal^  Justice  of  the  United  States,  the day  of 

,  in  the   year  of  our  Lord  one  thousand 

eight  hundred  and  ninety .  J.  McK., 

Clerk  of  the  Supreme  Court  of  the  United  States. 

(i)  See  Act  of  Congress  of  March  3,  1891,  Sec.  6. 


No.  686. 

Notice  of  Submission  of  Motions  (i). 

[Caption.^ 
To  Messrs.  R.  X.  and  S.  X.,  Counsel  for  Appellant: 

Please  take  notice  that  on  Monday,  the day  of , 

1894,  at  the  opening  of  the  court,  or  as  soon  thereafter  as 
counsel  can  be  heard,  the  motions  of  which  the  foregoing  are 
copies  will  be  submitted  to  the  supreme  court  of  the  United 
States  for  the  decision  of  the  said  court  thereon.  Annexed 
hereto  is  a  copy  of  the  brief  of  argument  to  be  submitted 
with  the  said  motions  in  support  thereof.  R.  Y., 

Counsel  for  the  Appellee  for  the  Purposes 
of  these  Motions. 

(i)  See  6th  U.  S.  Supreme  Court  Rule,  Clause  3. 


MISCEI^LANEOUS   ENTRIES,    ORDERS,  ETC.  633 

No.  687. 

Motion  to  Dismiss  (i). 

The  United  States  Circuit  Court  of  Appeals, 

for  the Circuit. 

A.   B.   ^ 

vs.       y  Motion  to  Dismiss. 
C.   D.   j 

And  now  comes  the  defendant  in  error  [or,  appellee],  and 
moves  the  court  to  dismiss  the  writ  of  error  [or,  appeal] 
herein  for  the  following  reasons  [here  set  forth  the  grounds 
upon  which  the  motion  is  bcLsed\  R.  Y., 

Counsel  for . 

(i)  Notice  of  this  motion  should  be  served  upon  the  opposite  counsel 
in  the  case  before  the  same  is  heard. 


No.  688. 

Motion  to  Dismiss  or  to  Affirm. 

The  Supreme  Court  of  the  United  States, 

for  the Term,  189 — . 

A.  B.,  Appellant, 

vs. 
C.   D.,  Appellee. 

Comes  now  the  appellee,  by  his  counsel  appearing  in  that 
behalf,  and  moves  the  court  to  dismiss  the  appeal  in  the 
above-entitled  cause  for  want  of  jurisdiction,  because  the 
judgment  or  decree  from  which  the  said  appeal  purports  to 
have  been  taken  is  the  judgment  or  decree  of  the  supreme 
court  of  one  of  the  United  States,  to  wit,  the  supreme  court 

of  the  state  of . 

And  the  said  appellee,  by  counsel  as  aforesaid,  also  moves 
the  court  to  affirm  the  said  judgment  or  decree  from  which 
said  appeal  purports  to  have  been  taken,  because,  although 
the  record  in  the  said  cause  may  show  that  this  court  has 
jurisdiction  in  the  premises,  yet  it  is  manifest  that  said 
appeal  was  taken  for  delay  only.  R.  Y,, 

Counsel  for  Appellee  for  the  Purposes 
of  these  Motions. 


634  APPELLATE  PROCEEDINGS. 

No.  689. 
Order  Dismissing  Cause  on  Motion  Filed. 

The  United  States  Circuit  Court  of   Appeals, 

for  the Circuit. 

No. .  Term,  189 — . 

A.  B.^ 

vs.     >  Order  Dismissing  Cause  on  Motion  Filed. 
C.  D.j 

Error  to  \or^  appeal  from]  the  district  [or,  circuit]  court 

of  the  United  States  for  the district  of . 

This  cause  having  been  called  for  hearing  in  its  regular 
order,  and  a  motion  by  counsel  for  the  plaintiff  in  error  [<?r, 
defendant  in  error,  or,  appellant,  or,  appellee,  as  may  be]  to 
dismiss  this  cause  having  been  filed,  therefore,  in  pursuance 
of  said  motion,  it  is  now  here  ordered  and  adjudged  (and  de- 
creed) by  this  court,  that  the  writ  of  error  [or,  appeal]  be, 
and  the  same  is,  hereby  dismissed. 


No.  690. 

Order  Dismissing  Case  on  Call. 

The  United  States  Circuit  Court  of  Appeals, 

for  the Circuit. 

No. .  Term,  189—. 

A.  B.^ 

vs.     y  Order  Dismissing  Case  on  Call. 
C.  D.j 

Error  to  [or,  appeal  from]  the  district  [or,  circuit]  court 

of  the  United  States  for  the district  of . 

This  cause  having  been  called  in  its  order,  and  no  one  ap- 
pearing for  the  plaintiff  in  error  [or,  appellant],  therefore, 
it  is  now  here  ordered  and  adjudged  (and  decreed)  by  this 
court,  that  the  said  writ  of  .error  [or,  appeal]  be,  and  the 
same  is  hereby  dismissed  at  the  cost  of  plaintiff  [or,  ap- 
pellant]. 


MISCELLANEOUS   ENTRIES,  ORDERS,  ETC.  635 

No.  691. 
Order  Dismissing  Cause  for  Failure  to  Print   (i). 

The  United  States  Circuit  Court  of  Appeals, 
for  the Circuit. 

No. .  ,  Term,  189  — . 

A.  B.  ^ 

vs.     >  Order  dismissing  cause  for  failure  to  print. 
CD.  J 

Error  to  [<?r,  appeal]    from  the district   [or^  circuit] 

court  of  the  United  States,  for  the District  of . 

This  cause  being  called  for  hearing  in  its  regular  order, 
and  it  appearing  to  the  court  that  the  parties  have  failed  to 
print  the  transcript  of  the  record,  it  is  thereupon,  in  pur- 
suance of  the  23d  rule  of  this  court,  now  here  ordered  and 
adjudged  (and  decreed)  by  this  court  that  the  writ  of  error 
[<?r,  appeal]  be,  and  the  same  is  hereby  dismissed,  at  the 
costs  of  the  plaintiff  in  error  \or^  appellant] . 

(i)  See  23d  rule,  Circuit  Court  of  Appeals. 


No.  692. 

Order  Dismissing  Cause  under  Rule  (i). 

The  United  States  Circuit  Court  of  Appeals, 

for  the Circuit. 

No. ,  Term,  189—. 

A.  B.,  Plaintiff  in  Error  [or,  Appellant],  ")  Order 

vs.  >        dismissing 

C.  D.,  Defendant  in  Error  [or,  Appellee],  j  cause. 

Error  to  [or,  appeal  from]  the  District  [or,  Circuit]  Court  of 

the  United  States  for  the district  of . 

This  cause  came  on  to  be  heard  on  the  transcript  of  the 
record  from  the  district   [or,  circuit]    court  of  the  United 

States  for  the district  of ,  and  the  plaintiff  in  error 

[or,  appellant]  having  been  three  times  solemnly  called  by 
the  marshal  to  come  into  court  and  prosecute  said  writ  of 


636  APPELLATE  PROCEEDINGS. 

error  [or,  appeal],  and  failing  to  appear,  it  is,  thereupon,  in 
pursuance  of  the  2 2d  rule  of  this  court,  and  on  the  motion 
of  Mr.  R.  X.,  of  counsel  for  the  appellee  [or,  defendant  in 
error],  now  here  ordered,  adjudged,  (and  decreed)  by  this 
court,  that  this  cause  be,  and  the  same  is  hereby,  dismissed 
at  plaintiff's  [or,  appellant's]  costs;  and  that  this  cause  be, 
and  is  hereby,  remanded  to  the  said  district  [or,  circuit] 
court  to  be  proceeded  in  according  to  law  and  justice. 

(i)  1 6th  U.  S.  Supreme  Court  Rule,  and  22d  Rule  Circuit  Court  of 
Appeals. 


No.  693. 

Habeas  Corpus. 

For  forms  of  appellate  proceedings  in  the  matter  of  habeas 
corpus,  see  Nos.  529  to  531. 


,] 


No.  694. 

Certificate  by  Clerk  under  gth  Rule  of  the  Supreme  Court. 

The  United  States  Circuit  Court  of  Appeals 

for  the Circuit. 

A.  B.,  Plaintiff  in  Error  [or,  Appellant], 

vs. 
C.  D.,  Defendant  in  Error  [or.  Appellee]. 
The  United  States  of  America, 

Circuit,  ss: 

I,  S.  F.,  clerk  of  the  United  States  circuit  court  of  appeals 

for  the circuit,  do  hereby  certify  that  on  the day 

of ,  1894,  an  order  was  entered  herein  by  the  circuit 

court  of  appeals  for  the circuit,  directing  a  mandate  to 

issue  to  the  circuit  court  of  the  United  States  for  the 

district  of ,  affirming  a  judgment  of  said  circuit  court 

entered  in  the  clerk's  office  of  said  court  on  the day  of 

"-,  1894,  and  that  on  the day  of ,  1894,  a  writ  of 

error  for  the  review  of  said  order  by  the  supreme  court  of  the 


MISCELLANEOUS   ENTRIES,  ORDERS,  ETC.  637 

United  States  was  duly  sued  out  by  A.  B.,  and  allowed  by  the 
honorable  E.  H.,  circuit  judge,  and  issued  from  the  clerk's  office 

of  the  United  States  circuit  court  of  appeals  for  the 

circuit,  which  writ  of  error  was  returnable  in  the  supreme 


court  of  the  United  States  on ,  1894  ;  that  on  or  about 

the  same  day  a  bond  as  security  for  the  costs  upon  said  writ 
of  error  and  a  citation  for  the  said  return  day  were  duly 
approved  and  signed  by  the  said  circuit  judge,  which  writ  of 
error,  citation,  and  bond  were  duly  served  on  the  attorney 
for  the  defendant  in  error  on ,  1894. 

In  testimony  whereof,  I  have  caused  the  seal  of  the  said 

court  to  be  hereunto  affixed,  at  the  city  of ,  in  the 

circuit,  this day  of  ,  in  the  year  of  our  Lord  1894, 

and  of  the  independence  of  the  said  United  States  the  one 
hundred  and  eighteenth.  S.  F., 

[Sea/.]  Clerk  of  the  U.  S.  Circuit 

Court  of  Appeals  for  the 
Circuit. 


No.  695. 

Mandate. 

The  United  States  of  America,  ss. 
The  President  of  the  United  States  of  America  to  the  Hon- 
orable the  Judges  of  the  [name  of  court  below\  Greeting: 

Whereas,  lately  in  the  [iiame  of  court  below\  before  you,  or 
some  of  you,  in  a  cause  between  A.  B.,  plaintiflf,  and  C.  D.^ 
defendant,  judgment  was  rendered  in  the  words  following,  to 
wit,  [Jiere  set  forth  the  judg7nent\^  as  by  the  inspection  of  the 
transcript  of  the  record  of  the  said  [court  below\  court,  which 
was  brought  into  the  supreme  court  of  the  United  States  by 
virtue  of  a  writ  of  error  [or^  appeal,  as  may  be],  agreeably  to 
the  act  of  congress  in  such  case  made  and  provided,  fully  and 
at  large  appears.  And  whereas  in  the  present  term  of  Octo- 
ber, in  the  year  of  our  Lord  one  thousand  eight  hundred  and 


638  APPELLATE  PROCEEDINGS. 

ninety ,  the  said  cause  came  on  to  be  heard  before  the 

said  supreme  court  of  the  United  States  [or,  United  States 
circuit  court  of  appeals  for  the circuit]  on  the  said  tran- 
script of  record,  and  was  argued  by  counsel : 

On  consideration  whereof,  it  is  now  here  ordered,  ad- 
judged, and  decreed  by  this  court  that  the  judgment  [or,  de- 
cree] of  the  said  [cour^  below]  court  in  this  cause  be  and  the 
same  is  hereby  affirmed  [or,  reversed,  as  may  be\  with  costs. 
[Here  add  the  directions,  if  any,  to  the  court  below,  or  further 
relief  to  either  party  as  costs  or  damages,  etc.] 

You,  therefore,  are  hereby  commanded  that  such  [state  di- 
rections, as  "  execution,^^  etc.],  and  proceedings  be  had  in  said 
cause  as  according  to  right  and  justice,  and  the  laws  of 
the  United  States,  ought  to  be  had,  the  said  writ  of  error  [or, 
appeal]  notwithstanding. 

Witness  the  Honorable  Melville  W.  Fuller,  Chief  Justice  of 

the  United  States,  the day  of ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  ninety .  . 

Costs  of 

Clerk $  .   .   . 

Printing  Record    .   $  .    .    . 

Attorney    .   .     ..$... 


J.  K., 
Clerk  of  the  Supreme  Court 
of  the  United  States  [or, 
U.S.  Circuit  Court  of  Ap- 
peals for  the Circuit]. 


No.  696. 

Mandate  (i). 

The  United  States  of  America,  ss. 

The  President  of  the  United  States  of  America  to  the  Presi- 
dent of  the  Senate  of  the  State  of  New  York,  the  Sena- 
tors, Chancellor  and  Justices  of  the  Supreme  Court  of 
the  said  State,  being  the  Judges  of  the  Court  for  the 
Trial  of  Impeachments  and  Correction  of  Errors,  holden 
in  and  for  the  State  of  New  York,  Greeting: 
Whereas,  lately  in  the  court  for  the  trial  of  impeachments 

and  correction  of  errors,  holden  in  and  for  the  state  of  New 


MISCEIvLANEOUS    ENTRIES,  ORDERS,  ETC.  639 

York,  before  you,  or  some  of  you,  in  a  cause  between  Charles 
A.  Davis,  plaintiflf  in  error,  and  Isaac  Packard,  Henry  Dis- 
dier,  and  William  Morphy,  defendants  in  error,  the  judgment 
of  the  said  court  for  the  trial  of  impeachments  and  correction 
of  errors  was  in  the  following  words,  to  wit : 

"Therefore  it  is  considered  by  the  said  court  for  the  cor- 
rection of  errors  that  the  judgment  of  the  supreme  court 
aforesaid  be  and  the  same  is  hereby  in  all  things  confirmed. 
It  is  further  considered  that  the  said  defendants  in  error 
recover  against  the  plaintiffs  in  error  their  double  costs,  ac- 
cording to  the  statute  in  such  case  made  and  provided,  to  be 
taxed  in  defending  the  writ  of  error  in  this  cause,  and  also 
interest  on  the  amount  recovered,  by  way  of  damages,"  as  by 
the  inspection  of  the  transcript  of  the  said  court  for  the  trial 
of  impeachments  and  correction  of  errors,  which  was  brought 
into  the  supreme  court  of  the  United  States  by  virtue  of  a 
writ  of  error,  agreeably  to  the  act  of  congress  in  such  case 
made  and  provided,  fully  and  at  large  appears.  And  where- 
as, in  the  present  term  of  January,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  thirty-three,  the  said  cause 
came  on  to  be  heard  before  the  said  supreme  court  on  the 
said  transcript  of  the  record,  and  was  argued  by  counsel,  on 
consideration  whereof  it  is  the  opinion  of  this  court  that  the 
plaintiff  in  error,  being  consul-general  of  the  king  of  Sax- 
ony, exempted  him  from  being  sued  in  the  state  court,  by 
reason  whereof  the  judgment  rendered  by  the  court  for  the 
trial  of  impeachments  and  correction  of  errors  is  erroneous. 
Whereupon  it  is  ordered  and  adjudged  by  this  court  that  the 
judgment  of  the  said  court  for  trial  of  impeachments  and 
correction  of  errors  be  and  the  same  is  hereby  reversed ;  and 
that  this  cause  be  and  the  same  is  hereby  remanded  to  the 
said  court,  with  direction  to  conform  its  judgment  to  the 
opinion  of  this  court. 

You,  therefore,  are  hereby  commanded  that  such  further 
proceedings  be  had  in  said  cause  as  according  to  right  and 
justice,  and  in  conformity  to  the  opinion  and  judgment  of  said 


640  APPELLATE  PROCEEDINGS. 

supreme  court  of  the  United  states,  and  the  laws  of  the 
United  States,  ought  to  be  had,  the  said  writ  of  error  not- 
withstanding. 

Witness  the  Honorable  John  Marshal,  Chief  Justice  of 
said  supreme  court,  the  second  Monday  of  January,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  thirty- 
three.  William  Thomas  Carroll, 

J^Seal."]  Clerk  of  the  Supreme  Court  of  the 

United  States. 

(i)  From  Davis  vs.  Packard,  8  Peters,  312,  314-16. 


No.  697. 

Petition  for  Writ  of  Certiorari  to  a  Circuit  Court  of 
Appeals  (i). 

In  the  Supreme  Court  of  the  United  States, 

Term,  18—. 

Bx  parte  Lau  Ow  Bew,  Petitioner. 

Petition  for  Writ  of  Certiorari,  requiring  the  Circuit  Court 
of  Appeals  for  the  Ninth  Circuit  to  certify  to  the  Su- 
preme Court  for  its  review  and  determination  the  case 
of  Lau  Ow  Bew,  Appellant,  vs.  The  United  States,  Re- 
spondents. 
To  the  Honorable  the  Supreme  Court  of  the  United  States: 
The  petition  of  Lau  Ow  Bew  respectfully  shows  to  this 
honorable  court  as  follows : 

First.  Your  petitioner  is  a  person  of  the  Chinese  race,  and 
a  natural-born  object  of  the  Emperor  of  China ;  but  he  is 
now,  and  for  the  past  seventeen  years  has  been,  a  resident  of 
the  United  States  of  America,  and  of  no  other  country,  hav- 
ing his  domicile  in  the  city  of  Portland,  in  the  state  of  Ore- 
gon ;  and  during  all  that  time  he  has  been  a  merchant  en- 
gaged in  the  wholesale  and  importing  business,  as  a  member 
of  the  well-known  commercial  firm  of  Hop  Chong  &,  Co.,  in 
the  said  city  of  Portland, 


MISCELLANEOUS   ENTRIES,  ORDERS,  ETC.  64 1 

Second.  Your  petitioner,  on  the  30th  day  of  September, 
1890,  departed  from  the  United  States  on  a  temporary  visit 
to  his  relatives  in  China,  with  the  intention  of  returning  as 
soon  as  possible,  and  he  did  return  to  the  United  States  on 
board  of  the  steamship  Oceanic,  which  arrived  at  the  port 
of  San  Francisco,  in  the  state  of  California,  on  the  nth  day 
of  August,  1 89 1.  At  the  time  of  his  departure  he  procured 
satisfactory  evidence  of  his  status  in  this  country  as  a  mer- 
chant, under  the  regulations  of  the  treasury  department  of 
the  United  States,  adopted  July  3,  1890,  one  of  which  is  as 
follows : 

"Chinamen  who  are  not  laborers,  and  who  may  have  here- 
tofore resided  in  the  United  States,  are'not  prevented  by  the 
existing  laws  or  treaty  from  returning  to  the  United  States 
after  visiting  China  or  elsewhere.  No  certification,  or  other 
papers,  however,  are  issued  by  the  department,  or  by  any  of 
its  subordinate  officers,  to  show  that  they  are  entitled  to  land 
in  the  United  States,  but  it  is  suggested  that  such  parties 
should,  before  leaving  the  United  States,  provide  themselves 
with  such  proofs  of  identity  as  may  be  deemed  proper,  show- 
ing they  have  been  residents  of  the  United  States,  and  that 
they  are  not  laborers,  so  that  they  can  present  the  same  to, 
and  be  identified  by,  the  collector  of  customs  at  the  port 
where  they  may  return." 

Third.  Your  petitioner,  on  his  return  to  the  United  States, 
presented  said  proofs  to  the  collector  of  the  port  of  San  Fran- 
cisco ;  but  the  collector,  while  acknowledging  the  sufficiency 
of  the  same,  and  admitting  that  your  petitioner  was  a  mer- 
chant domiciled  herein,  and,  therefore,  entitled  to  the  protec- 
tion of  the  treaty  between  the  United  States  and  China, 
concluded  July  28,  1868,  popularly  known  as  the  Burlingame 
Treaty,  and  the  supplemental  treaty  between  the  said  gov- 
ernments, concluded  November  17,  1880,  and  the  act  of  con- 
gress entitled  "An  act  to  execute  certain  treaty  stipulations 
relating  to  Chinese,"  approved  May  6,  1882,  as  amended 
July  5,  1884,  refused  to  permit  your  petitioner  to  land,  on 


642  APPELLATE  PROCEEDINGS. 

the  sole  ground  that  he  failed  and  neglected  to  produce  the 
certificate  of  the  Chinese  Government,  mentioned  in  Section 
6  of  the  said  act  of  May  6,  1882,  as  amended  by  the  said 
act  of  July  5,  1884;  and  the  collector  based  this  refusal 
upon  the  opinion  of  this  honorable  court  in  the  case  of  Wan 
Shing  vs.  United  States,  No.  1414,  October  term,  1890,  de- 
cided May  II,  1891. 

Fourth.  Your  petitioner  thereupon,  to  wit,  on  August  14, 
1891,  filed  a  petition  in  the  circuit  court  of  the  United  States 
for  the  northern  district  of  California  for  a  writ  of  habeas 
corpus^  to  obtain  his  discharge  from  detention,  alleging,  inter 
alia^  that  he  was  a  merchant  domiciled  in  the  United  States 
for  seventeen  years  last  past,  and  that  it  was  claimed  by  the 
master  of  the  said  steamship  that  he  could  not  be  allowed  to 
land  under  the  provisions  of  the  sixth  section  of  the  said 
act  of  May  6,  1882,  as  amended  by  the  said  act  of  July  5, 
1884. 

The  writ  was  issued  directed  to  the  master  of  the  said 
steamship,  who  produced  the  body  of  your  petitioner  before 
the  said  court  on  the  15th  day  of  August,  1891,  and  made 
return  to  the  writ  that  he  held  the  petitioner  in  his  custody 
"  by  direction  of  the  customs  authorities  of  the  port  of  San 
Francisco,  California,  under  the  provisions  of  the  Chinese 
Restriction  Act." 

The  United  States  district  attorney  filed  an  intervention 
for  and  on  behalf  of  the  United  States,  and  made  opposition 
to  the  said  writ.  It  was  not  alleged  or  pretended,  in  such 
intervention  on  behalf  of  the  United  States,  that  your  peti- 
tioner was  a  laborer,  or  that  the  refusal  of  the  customs  offi- 
cers at  San  Francisco  to  allow  him  to  land,  and  his  conse- 
quent detention  by  the  master  of  the  said  steamship,  were 
based  upon  the  provisions  of  the  Chinese  Exclusion  Act  of 
October  i,  1888 ;  but  on  the  contrary  it  was  averred,  in  said 
intervention,  that  your  petitioner  was  lawfully  detained  by 
the  said  master  because  he  was  a  Chinese  person,  and  failed 
to  produce   to  the   collector    of  customs,   or  to  any  other 


MISCELLANEOUS   ENTRIES,  ORDERS,  ETC.  643 

authorized  officer  the  certificate  of  identification  required  by 
the  said  act  of  1882  as  amended  by  the  said  act  of  1884. 

An  answer  or  traverse  to  the  said  return  to  the  said  writ, 
and  the  said  intervention  on  behalf  of  the  United  States,  was 
filed  by  the  petitioner. 

The  said  case  was  and  is  entitled  and  numbered  in  the 
circuit  court  of  the  United  States  for  the  northern  district 
of  California  "  In  the  Matter  of  Lau  Ow  Bew  on  Habeas  Cor- 
pus^ No.  11415." 

Fifth.  The  said  case  was  heard  and  determined  by  the 
said  circuit  court  upon  an  agreed  statement  of  facts,  signed 
by  the  United  States  district  attorney  and  the  attorneys  for 
the  petitioner,  and  filed  therein,  which  statement  of  facts  is 
as  follows: 

It  is  hereby  stipulated  and  agreed  that  the  following  are 
the  facts  herein : 

'■''First.  That  the  said  Lau  Ow  Bew  is  now  on  board  the 
steamship  Oceanic,  which  arrived  in  the  port  of  San  Fran- 
cisco, state  of  California,  on  the  nth  day  of  August,  A.  D., 
1 89 1,  from  Hong  Kong,  and  is  detained  and  confined  thereon 
by  Captain  Smith,  the  master  thereof. 

''''Second.  That  the  said  passenger  is  now  and  for  seventeen 
years  last  past  has  been  a  resident  of  the  United  States  and 
domiciled  therein. 

"  Third.  That  during  all  of  said  time  the  said  passenger 
has  been  engaged  in  the  wholesale  and  importing  mercan- 
tile business  in  the  city  of  Portland,  state  of  Oregon,  under 
the  firm  name  and  style  of  Hop  Chong  &  Co. 

'■''Fourth.  That  the  said  firm  is  worth  $40,000,  and  said 
passenger  has  a  one-fourth  interest  therein,  in  addition  to 
other  properties. 

'■''Fifth.  That  the  said  firm  does  a  business  annually  of 
$100,000,  and  pays  annually  to  the  United  States  govern- 
ment large  sums  of  money,  amounting  to  many  thousands  of 
dollars,  as  duties  upon  imports. 

''''Sixth.  That  on  the  30th  day  of  September,  A.  D.  1890, 
the  said  passenger  departed  from  this  country  temporarily 


644  APPELLATE  PROCEEDINGS. 

on  a  visit  to  his  relatives  in  China,  with  the  intention  of  re- 
turning as  soon  as  possible  to  this  country,  and  returned  to 
this  country  by  the  steamship  Oceanic  on  the  nth  day  of 
August,  A.  D.  1891. 

''''Seventh.  That  at  the  time  of  his  departure  he  procured 
satisfactory  evidence  of  his  status  in  this  country  as  a  mer- 
chant, and  on  his  return  hereto  he  presented  said  proofs  to 
the  collector  of  the  port  of  San  Francisco,  but  said  collector, 
while  acknowledging  the  sufficiency  of  said  proofs  and  ad- 
mitting that  the  said  passenger  was  a  merchant  domiciled 
herein,  refused  to  permit  the  said  passenger  to  land  on  the 
sole  ground  that  the  said  passenger  failed  and  neglected  to 
produce  the  certificate  of  the  Chinese  government  men- 
tioned in  Section  6,  of  the  Chinese  Restriction  Act  of  May 
6,  1882,  as  amended  by  the  act  of  July  5,  1884. 

"Charles  A.  Carter, 

"  U.  S.  District  Attorney. 
"  Harvey  S.  Brown  and 
"  Thomas  D.  Riordan, 

"Attorneys  for  Petitioner." 

Sixth.  Such  proceedings  were  had  in  the  said  case  in 
the  said  circuit  court  of  the  United  States,  that  on  the  nth 
day  of  September,  1891,  the  said  court  rendered  a  judgment 
therein  as  follows : 

"This  matter  having  been  regularly  brought  on  for  hear- 
ing before  the  court  and  the  judge  thereof,  the  United  States 
attorney  having  appeared  and  intervened  on  behalf  of  the 
United  States,  and  the  same  having  been  duly  heard  and 
submitted,  and  due  consideration  thereon  had,  it  is  by  the 
court  now  here  considered — 

"That  Lau  Ow  Bew,  in  whose  behalf  the  writ  of  habeas 
corpus  herein  was  sued  out,  was  not  at  the  date  of  the  peti- 
tion  herein   illegally  restrained   of    his   liberty   as   therein 
I  alleged. 

"  It  is  further  adjudged  and  found  that  he  came  from 
China  by  the  steamship  Oceanic,  and  is  a  Chinese  person 


MISCELLANEOUS    ENTRIES,  ORDERS,  ETC.  645 

forbidden  by  law  to  land  within  the  United  States,  and  has 
no  right  to  be  or  remain  therein. 

"  It  is  therefore  ordered  that  the  said  Lau  Ow  Bew  be  re- 
manded by  the  United  States  Marshal  for  the  Northern  Dis- 
trict of  California  to  the  custody  whence  he  was  taken,  to 
wit ;  on  board  the  said  steamship  to  the  custody  of  the  mas- 
ter of  said  steamship,  or,  in  case  of  a  change  of  master,  to  the 
custody  of  the  master  thereof,  whoever  he  may  be,  at  the  time 
of  this  order  of  remand ;  or  to  place  him  in  the  hands  and 
charge  of  any  party  on  board  of  said  steamship  for  the  time 
being  representing  the  master,  or  then  in  charge  of  said 
steamship  in  the  absence  of  the  master,  or  for  the  time  being 
exercising  control  or  authority  thereon  ;  this  order  to  be  exe- 
cuted as  to  said  steamship  whether  still  in  port,  not  having 
departed  therefrom,  or  having  departed  and  returned  since 
the  proceedings  herein  were  instituted.  And  in  case  said 
steamship  has  departed  and  not  returned,  or  for  any  other 
reason,  the  said  Lau  Ow  Bew  can  not  be  placed  on  said 
steamship,  that  the  said  marshal  place  him  upon  any  other 
vessel  available  for  the  purpose,  paying  the  necessary  pas- 
sage money,  for  the  purpose  of  deporting  him  out  of  the 
United  States  and  transporting  him  to  the  port  whence  he 
came.  And  for  the  purpose  of  carrying  this  order  into 
effect  it  is  further  ordered  that  the  said  marshal  shall  take 
the  said  Lau  Ow  Bew  into  their  custody,  and  him  safely 
keep  till  said  order  shall  be  fully  executed." 

Seventh.  The  said  case  of  your  petitioner,  in  the  said 
circuit  court  of  the  United  States,  was  heard  before  and  de- 
cided by  the  Hon.  W.  H.  Beatty,  district  judge  of  the 
United  States  for  the  district  of  Idaho,  sitting  in  the  said 
court,  and  the  opinion  of  the  court  was  delivered  by  him. 

Eighth.  Your  petitioner,  on  the  same  day,  was  duly 
allowed  by  the  said  circuit  court  an  appeal  from  its  said 
judgment  to  the  United  States  circuit  court  of  appeals  for 
the  ninth  circuit,  and  it  was  ordered  by  the  court  that  a 
certified  transcript  of  the  record  and  of  all  proceedings  in 


646  APPELLATE  PROCEEDINGS. 

the  said  case  be  forthwith  transmitted  to  the  said  United 
States  circuit  court  of  appeals. 

Ninth.  On  the  3d  day  of  October,  1891,  a  certified  tran- 
script of  the  record  and  of  all  proceedings  of  the  said  circuit 
court,  in  the  said  case,  was  filed  in  the  United  States  circuit 
court  of  appeals  for  the  ninth  circuit,  and  the  said  case  was 
entered  and  docketed  in  the  said  court  of  appeals,  and  en- 
titled "Lau  Ow  Bew,  appellant,  vs.  The  United  States,  re- 
spondent, No.  12." 

The  assignment  of  errors  filed  on  behalf  of  your  peti- 
tioner was  as  follows : 

"Afterwards,  to  wit,  on  the  first  Monday  in  October,  in  the 
same  term,  before  the  judges  of  the  circuit  court  of  appeals  for 
the  ninth  circuit,  at  the  city  of  San  Francisco,  in  the  dis- 
trict of  California,  comes  the  said  Lau  Ow  Bew,  appellant, 
by  Harvey  S.  Brown,  and  Thomas  D.  Riordan,  his  attorneys, 
and  says  that  in  this  record  aforesaid  there  is  manifest  error 
in  this,  to  wit : 

"That  the  circuit  court  of  the  ninth  judicial  circuit,  in  and 
for  the  district  of  California,  erred  in  deciding — 

"  I.  That  the  appellant  is  not  entitled  to  enter  the  United 
States. 

"  2.     That  he  is  not  unlawfully  restrained  of  his  liberty. 

"  3  That  the  said  appellant  was  required  to  produce  the 
certificate  required  by  Section  6  of  the  act  known  as  the  Chi- 
nese Restriction  Act,  passed  May  6,  1882,  as  amended  July 
5,  1884. 

"  4.  That  a  Chinese  merchant  domiciled  in  the  United 
States  and  departing  therefrom  temporarily  with  the  intention 
of  returning  should,  before  being  permitted  to  reenter  the 
United  States,  produce  the  certificate  required  by  Section  6 
bf  the  act  above  referred  to. 

"5.  That  he  be  remanded  to  the  custody  of  the  master  of 
the  steamship  whence  he  was  taken. 

"  And  the  said  Lau  Ow  Bew  prays  that  the  said  judgment 
entered  herein  against  him  be  reversed,  annulled,  and  alto- 


MISCELLANEOUS   ENTRIES,  ORDERS,  ETC.  647 

gether  held  for  nothing,  and  that  he  be  restored  to  all  things 
which  he  has  lost  by  occasion  of  the  said  judgment. 

"  Harvey  S.  Brown  and 
"  Thomas  D,  Riordan, 
"  Attorneys  for  Appellant." 

Tenth.  The  case  came  on  to  be  heard  in  the  said  circuit 
court  of  appeals  on  the  5th  day  of  October,  1891,  before  the 
Hon.  E.  M.  Ross,  United  States  district  judge  for  the  south- 
ern district  of  California,  and  the  Hon.  Thomas  P.  Hawley, 
United  States  district  judge  for  the  district  of  Nevada  ;  and 
on  the  7th  day  of  October,  1891,  the  said  court  rendered  a 
judgment  affirming  the  said  judgment  of  the  said  circuit 
court  therein,  as  follows  : 

"  Appeal  from  the  circuit  court  of  the  United  States  for  the 
northern  district  of  California. 

"  This  cause  came  on  to  be  heard  on  the  transcript  of  the 
record  from  the  said  circuit  court  of  the  United  States  for  the 
northern  district  of  California,  and  was  argued  by  counsel, 
and  the  same  having  been  duly  considered,  and  the  opinion 
of  the  court  having  been  read  in  open  court  and  filed  with 
the  clerk,  it  is  ordered  that  the  judgment  of  the  said  circuit 
court  be  and  the  same  hereby  is  affirmed,  and  the  cause 
remanded  to  said  circuit  court  at  the  cost  of  the  appellant. 

"On  motion  of  Thomas  D.  Riordan,  Esq.,  counsel  for 
appellant,  it  is  ordered  that  a  stay  of  proceedings  herein  be 
and  the  same  hereby  is  granted  for  and  during  the  space  of 
thirty  days." 

A  certified  copy  of  the  entire  record  of  the  said  case  in  the 
said  circuit  court  of  appeals  is  herewith  furnished,  and  hereto 
annexed,  as  part  of  this  application,  in  conformity  with  rule 
37  of  this  honorable  court  relative  to  cases  from  circuit  court 
of  appeals,  and  the  same  is  marked  exhibit  "  A." 

Eleventh.  Your  petitioner  is  advised  and  believes  that  the 
said  judgment  of  the  United  States  circuit  court  of  appeals  in 
the  said  case  is  erroneous,  and  that  this  honorable  court 
should  require  the  said  case  to  be  certified  to  it  for  its  re- 


648  APPELLATE  PROCEEDINGS. 

view  and  determination  under  and  in  conformity  with  the 
provisions  of  the  sixth  section  of  the  act  of  congress  entitled 
"  An  act  to  establish  circuit  courts  of  appeals,  and  to  define 
and  regulate  in  certain  cases  the  jurisdiction  of  the  courts  of 
the  United  States,  and  for  other  purposes,"  approved  March 
3,  1 89 1,  the  said  case  being  made  final  in  the  said  circuit  court 
of  appeals  by  the  said  act. 

Twelfth.  The  said  case  was  decided  in  the  said  circuit 
court  of  appeals,  as  well  as  in  the  said  circuit  court,  upon  the 
supposed  authority  of  the  decision  of  this  honorable  court  in 
the  said  case  of  Wan  Shing  vs.  United  States,  but  the  question 
presented  by  and  involved  in  the  said  case  of  the  petitioner 
was  not  presented  by  or  involved  in  the  said  case  of  Wan  Shing 
vs.  United  States,  and  the  said  question  was  not  decided  in  that 
case,  nor  was  the  decision  of  the  same  necessary  for  the  de- 
termination of  that  case  by  this  honorable  court. 

Your  petitioner  is  informed  and  believes  that  the  question 
presented  by  and  involved  in  his  said  case  was  not  discussed 
in  any  wise  by  counsel  before  this  honorable  court  in  the 
said  case  of  Wan  Shing  vs.  United  States. 

Thirteenth.  It  appears  in  the  said  agreed  statement  of 
facts,  and  it  is  thus  admitted  in  this  case  by  the  government 
of  the  United  States,  that  the  petitioner  is,  and  has  been  for 
seventeen  years  last  past,  a  Chinese  merchant  domiciled  and 
doing  business  in  the  United  States ;  that  he  departed  there- 
from September  30,  1890,  on  a  temporary  visit  to  his  rela- 
tives in  China,  with  the  intention  of  returning  as  soon  as 
possible,  and  did  return  on  August  11,  1891;  that  he  was 
not  prevented  from  landing  by  the  authorities  of  the  govern- 
ment of  the  United  States  upon  any  claim  or  pretense  that 
he  was  a  laborer,  excluded  by  the  provisions  of  the  act  of 
October  i,  1888';  and  that  he  was  refused  permission  to  land 
on  the  sole  ground  that  he  failed  "  to  produce  the  certificate 
of  the  Chinese  government,  mentioned  in  section  six  of  the 
Chinese  Retriction  Act  of  May  6,  1882,  as  amended  by  the 
act  of  July  5,  1884." 


MISCElvI<ANEOUS   ENTRIES,  ORDERS,  ETC.  649 

The  question  thus  presented  by  the  record  in  the  case  of 
your  petitioner  was,  and  is,  whether  he  is  entitled,  as  a 
Chinese  merchant,  long  domiciled  in  the  United  States,  who 
had  departed  therefrom  in  September,  1890,  for  a  temporary 
purpose,  to  re-enter  the  country  without  producing  the  cer- 
tificate in  section  six  of  the  Chinese  Restriction  Acts. 

Fourteenth.  This  honorable  court  declared  in  the  said  case 
of  Wan  Shing  vs.  United  States  that  the  refusal  to  allow  the 
petitioner  therein  to  land  was  not  grounded  at  all  upon  the 
said  act  of  May  6,  1882,  but  was  based  wholly  upon  the  pro- 
visions of  the  Chinese  Exclusion  Act  of  October  i,  1888, 
which  declared  that  it  should  be  unlawful  for  any  Chinese 
laborer,  who,  at  any  time  before  had  been,  or  was  then,  or 
might  thereafter  be,  a  resident  within  the  United  States,  or 
who  had  departed  or  might  depart  therefrom,  and  should  not 
have  returned  before  its  passage,  to  return  or  remain  in  the 
United  States. 

It  was  thus  claimed  and  maintained  by  the  authorities  of 
the  United  States,  in  the  said  case,  that  the  said  Wan  Shing 
was  a  laborer,  and  lawfully  detained  as  such,  and  that  he  was 
not  a  Chinese  merchant,  or  within  the  exempt  class  when  he 
sought  to  enter  the  United  States. 

It  appeared  aflfirmatively,  by  the  testimony  of  Wan  Shing, 
as  your  petitioner  is  advised,  that  he  was  a  youth  only  seven- 
teen years  of  age  when  he  claimed  to  have  been  in  the 
United  States,  and  that  he  was,  in  fact,  a  laborer,  and  not  a 
merchant,  within  the  meaning  of  the  treaties  between  the 
United  States  and  China,  and  the  Chinese  Restriction  Acts; 
that  he  first  came  to  the  United  States  in  1879,  ^^^  departed 
therefrom  in  1882;  and  that  he  did  not  return  to,  and  seek  to 
enter  the  United  States  until  1889.  ^"^  there  was  no  evi- 
dence in  the  said  case,  as  your  petitioner  is  advised,  that 
Wan  Shing,  at  the  time  of  his  departure  from  the  United 
States,  intended  ever  to  return  to  the  country,  or  to  retain 
his  domicile  therein,  if  he  ever  had  one. 

Fifteenth.  The  petitioner  is  advised  that  the  right  of  a 
Chinese  merchant,  admitted  to  be  domiciled  in  the  United 


650  APPELLATE  PROCEEDINGS. 

States,  and  to  have  been  domiciled  therein  for  many  years^ 
who  temporarily  departed  therefrom  in  the  year  1890,  anmio 
revertendi^  to  re-enter  the  country  without  producing  a  cer- 
tificate of  identity,  under  the  sixth  section  of  the  said  act  of 
1882,  as  amended  in  1884,  was  not  drawn  in  question  in  the 
said  Wan  Shing  case. 

Sixteenth.  Your  petitioner  is  informed  and  believes  that 
the  case  of  Wan  Shing  vs.  United  States,  being  No.  1414  on 
the  docket  of  this  court  for  the  October  term,  1890,  and 
advanced  on  the  motion  of  the  attorney  general,  was  sub- 
mitted without  argument  of  any  kind  on  behalf  of  the  ap- 
pellant, and  upon  a  printed  brief  of  Mr,  Assistant-General 
Parker  in  the  part  of  the  United  States ;  and  that  no  assign- 
ment of  errors  was  filed  in  the  case  by  the  counsel  for  the 
appellant,  who  did  not  appear  in  court  when  the  case  was 
called  for  trial,  and  who  telegraphed  from  San  Francisco  to 
the  clerk  of  this  court  that  the  case  might  be  submitted  upon 
the  record.  The  appeal,  in  that  case,  was  thus,  as  the  pe- 
titioner is  advised,  virtually  abandoned  by  the  counsel  for  the 
appellant ;  and  the  petitioner  is  also  informed  and  believes 
that  substantially  the  only  proposition  in  the  brief  for  the 
United  States,  in  the  said  case,  was  that  the  testimony  in  the 
record  showed  that  Wan  Shing  was  a  laborer,  and  as  such 
was  not  entitled  to  land  under  the  provisions  of  the  Exclu- 
sion Act  of  October  i,  1888. 

Seventeenth.  The  importance  and  gravity  of  the  question 
as  to  the  rights  of  Chinese  merchants  domiciled  in  the  United 
States,  under  the  treaties  between  the  United  States  and 
China,  and  the  legislation  of  the  United  States  to  execute 
those  treaties,  will  be  recognized  when  it  is  stated,  according 
to  authentic  statistics,  that  the  Chinese  merchants  who  are 
now  domiciled  in  the  United  States  are  the  owners  and  in 
possession  of  real  and  personal  property  valued  at  over  $20,- 
000,000 ;  that  they  pay  annually  to  the  United  States  gov- 
ernment large  sums  of  moneys  as  duties  upon  imports 
aggregating  more  than  two  millions  of  dollars ;  that  nearly 


MISCELLANEOUS   ENTRIES,  ORDERS,  ETC.  65 1 

all  of  said  merchants  have  branch  houses  in  British  Co- 
lumbia, Cuba,  Mexico,  Peru,  and  the  Hawaiian  Islands ;  and 
that  they  are  constantly  and  necessarily  traveling  between 
the  United  States  and  those  countries  for  the  purpose  of 
collecting  moneys  due  to  them,  and  attending  to  their  various 
interests  in  their  branch  houses  therein.  If  such  Chinese 
merchants,  when  visiting  those  countries,  are  obliged  to  pro- 
duce certificates  of  identity  under  the  restriction  acts,  in 
order,  after  such  temporary  absences,  to  re-enter  the  United 
States,  they  would  be  required,  before  returning  thereto,  to 
proceed  to  China,  and  there  attempt  to  procure  such  certifi- 
cates. It  is  manifest,  however,  that  it  would  be  impossible 
for  those  Chinese  merchants  who  have  been  long  domiciled 
in  the  United  States  to  obtain  the  required  certificate,  be- 
cause the  Chinese  government  could  not  certify  to  the  facts 
necessary  to  be  set  forth  in  them,  nor  could  the  proper  diplo- 
matic or  consular  representatives  of  the  United  States  ascer- 
tain the  truth  in  regard  to  such  facts  for  the  purpose  of 
viseing  and  indorsing  such  certificates  as  provided  by  law. 

Eightee7tth.  Before  the  promulgation  of  the  opinion  of 
this  honorable  court  in  the  said  case  of  Wan  Shing  vs.  United 
States,  by  the  treasury  department  of  the  government  of  the 
United  States,  in  August,  1891,  and  thus  before  the  peti- 
tioner went  to  China,  in  September,  1890,  it  had  been  uni- 
formly held  by  that  department  that  Section  6  of  the  Chinese 
restriction  act  of  May  6,  1882,  as  amended  by  act  of  July  5^ 
1884,  was  not  applicable  to  Chinese  merchants  domiciled  in 
the  United  States,  and  who  had  departed  therefrom  tempo- 
rarily, and  that  they  might  lawfully  return  upon  the  produc- 
tion of  such  evidence  as  should  be  satisfactory  to  the  various 
collectors,  of  their  status  as  resident  merchants  in  the  United 
States. 

The  first  decision  was  rendered  by  the  Hon.  Charles  J. 
Folger,  on  March  14,  1884;  the  second  by  the  Hon.  W.  Q. 
Gresham,  on  September  25,  1884;  the  third  by  the  Hon.  H. 
F.  French,  on  December  2,  1884;  the  fourth,  fifth,  and  sixth 


652  APPELLATE  PROCEEDINGS. 

by  the  Hon.  Hugh  McCulloch,  respectively,  on  December  6, 
1884,  December  27,  1884,  and  January  14,  1885. 

The  question,  also,  came  before  the  United  States  circuit 
court  for  the  northern  district  of  California  on  April  9,  1885, 
in  the  case  of  Ah  Ping  (reported  in  11  Sawyer,  17),  and  it 
was  there  decided  the  same  way ;  and  thereafter  the  said 
treasury  department,  on  November  8, 1888,  and  July  3,  1890, 
reaflfirmed  its  previous  rulings  upon  the  subject. 

The  said  decisions  were  thus  all  made  before  the  petitioner 
left  the  United  States  to  visit  his  relatives  in  China. 

Nineteenth.  Under  the  said  decisions  Chinese  merchants 
domiciled  in  the  United  States  were  accustomed  to  go  and 
come  under  the  treaties  between  the  United  States  and 
China  upon  the  production,  on  their  return  to  this  country, 
of  such  evidence  of  their  status  as  was  deemed  satisfactory 
by  the  several  collectors  of  the  ports ;  and  the  records  of 
custom-houses  will  show,  as  the  petitioner  is  informed  and 
believes,  that  such  practice  was  not  attended  by  fraud. 

Twentieth.  To  require  Chinese  merchants  domiciled  in 
the  United  States,  whenever  they  may  depart  therefrom  tem- 
porarily with  the  intention  of  returning  thereto,  to  produce 
certificates  from  the  Chinese  government  in  order  to  enable 
them  to  re-enter  the  United  States,  would  seem  to  be  equiv- 
alent, as  has  been  observed,  to  an  absolute  refusal  to  permit 
their  return,  whereas  the  treaty  between  the  United  States 
and  China  of  November  17,  1880,  guarantees  to  such  mer- 
chants the  right  "to  go  and  come  of  their  own  free  will  and 
accord." 

Twenty-first.  Your  petitioner  thus  respectfully  submits 
that  the  question  upon  the  legal  and  just  construction  and 
effect  of  the  said  Chinese  Restriction  Acts,  involved  in  and 
presented  by  the  said  case  of  your  petitioner,  should  be 
authoritatively  and  finally  adjudged  by  this  honorable  court 
upon  and  after  a  full  presentation  to  the  court  of  the  merits 
of  the  said  question  on  the  part  of  the  petitioner  and  the 
United  States. 


MISCELLANEOUS    ENTRIES,  ORDERS,  ETC.  653 

Wherefore  your  petitioner  respectfully  prays  that  a  writ 
of  certiorari  may  be  issued  out  of  and  under  the  seal  of  this 
court,  directed  to  the  United  States  circuit  court  of  appeals 
for  the  ninth  circuit,  commanding  the  said  court  to  certify 
and  send  to  this  court,  on  a  day  certain  to  be  therein  desig- 
nated, a  full  and  complete  transcript  of  the  record  and  all 
proceedings  of  the  said  circuit  court  of  appeals  in  the  said 
case  therein  entitled  Lau  Ow  Bew,  appellant,  versus  The 
United  States,  respondents.  No.  12,  to  the  end  that  the  said 
case  may  be  reviewed  and  determined  by  this  court,  as  pro- 
vided in  Section  6,  of  the  act  of  congress  entitled  "An  act 
to  establish  circuit  courts  of  appeals,  and  to  define  and  to 
regulate,  in  certain  cases,  the  jurisdiction  of  the  Courts  of  the 
United  States,  and  for  other  purposes,"  approved  March  3, 
1 89 1,  or  that  your  petitioner  may  have  such  other  or  further 
relief  or  remedy  in  the  premises  as  to  this  court  may  seem 
appropriate  and  in  conformity  with  the  said  act,  and  that  the 
said  judgment  of  the  said  circuit  court  of  appeals  in  the  said 
case,  and  every  part  thereof,  may  be  reversed  by  this  honor- 
able court. 

And  your  petitioner  will  ever  pray,  etc. 

Lau  Ow  Bew, 
By  Thomas  D.  Riordan, 
Attorney  and  Counsel  for  Petitioner. 
J.  Hubley  Ash  ton, 
Thomas  D.  Riordan, 

of  Counsel  for  Petitioner. 

(i)  From  the  record  in  re  Law  OwBew,  141  U.  S.,  583. 

See  Act  of  May  6,  1882,  22  Stat,  at  L.,  Chap.  126;  Act  of  July  5^ 
1884,  :  Stat,  at  L.,  Chap.  220;  and  Act  of  Oct.  i,  1888,  25  Stat,  at  L., 
584,  for  a  review  of  the  laws  relating  to  Chinese  immigration,  See  note 
to  Act  of  Oct.  I,  1888,  in  Sup.  R.  S.,  Vol.  i.  p.  625.  See  also  Chae  Chan 
Ping  vs.  U.  S.,  130  U.  S.,  581 ;  Wan  Shing  vs.  U.  S.,  140  U.  S.,  424- 


654  APPEIvI^ATE   PROCEEDINGS. 

No.  698. 

Verification  of  the,  above   Petition  (i). 

District  of  Columbia, 

City  of  Washington,  ss. 

Thomas  D.  Riordan,  being  duly  sworn,  says  that  he  is  one 
of  the  attorneys  and  of  counsel  for  Lau  Ow  Bew,  the  peti- 
tioner above  named,  and  as  such  had  personal  charge  for  him 
of  the  case  in  the  foregoing  petition  mentioned  in  the  circuit 
court  of  the  United  States  for  the  northern  district  of  Cali- 
fornia, and  in  the  United  States  circuit  court  of  appeals  for 
the  ninth  circuit ;  that  he  has  read  the  said  petition  by  him 
subscribed,  and  that  the  facts  therein  stated  are  true  to  the 
best  of  his  information  and  belief. 

Thomas  D.  Riordan. 

Sworn  to  and  subscribed  before  me  this  29th  day  of  Octo- 
ber, 1 89 1.  E.  L.  White,  Notary  Public, 

[^Seal.l  District  of  Columbia. 

(i)  From  record  m  re  Lau  Ow  Bew,  141  U.  S.,  583. 


No.  699. 

Order  on  Petition  for  Writ  of  Certiorari. 

\Caption^ 
On  a  Petition  for  a  Writ  of  Certiorari  to  the  United  States 
Circuit  Court  of  Appeals  for  the Circuit. 

On  consideration  of  the  petition  for  a  writ  of  certiorari 
herein  to  the  United  States  circuit  court  of  appeals  for  the 

circuit,  and  of  the  argument  of  counsel  thereupon  had, 

as  well  in  support  of  as  against  the  same,  it  is  now  here  or- 
dered by  the  court  that  said  petition  be  and  the  same  is 
hereby  granted  \or  as  may  be']. 


THE    SUPREME  COURT  OF  THE 
UNITED  STATES. 


ORIGINAL  JURISDICTION.* 

No.  700. 

Bill  by  Foreign  Consul  (i)  against  a  Citizen  of  the 
United  States. 

In  the  Supreme  Court  of  the  United  States. 

A.  B.,  Plaintiflf,    ^ 

vs.  V 

C.  D.,  Defendant  J 

A.  B.,  a  resident  of  the  city  of ,  in  the  state  of  — 


but  an  alien,  and  a  consul  of  the  republic  of  France  for  the 
city  of ,  duly  appointed  and  accredited  by  the  govern- 
ment of  the  republic  of  France,  and  duly  recognized  as  such 
by  the  government  of  the  United  States  of  America,  brings 

this  his  bill  against  C.  D.,  of ,  in  the  state  of ,  who 

is  a  citizen  of  that  state.  Thereupon  your  orator  complains 
and  says :     [Set  forth  the  cause  of  action^ 

(i)  The  Supreme  Court  has  original  jurisdiction  "  in  all  cases  afiFect- 
ing  ambavSsadors,  other  public  ministers,  and  consuls."  Constitution 
of  United  States,  Art.  III.,  Sec.  2.;  R.  S.,  Sec.  687.;  Cooky's  Const.  Law, 
p.  112,  and  Gould  &  Tucker's  Notes  to  the  Revised  Statutes,  p.  136. 


No.  701. 

Bill  by  one  State  against  another  to  Settle  the 
Boundary  (i). 

In  the  Supreme  Court  of  the  United  States. 
[Caption^ 

The  state  of  Missouri,  by  Robert  A.  Hatcher,  her  agent 
and  attorney,  duly  appointed  and  commissioned  in  pursuance 

*For  appellate  forms  in  supreme  court  see  Appellate  Proceedings,  page  613. 

655 


656  U.  S.  SUPREME   COURT. 

of  law,  states  that  a  controversy  has  arisen  between  said  state 
and  the  state  of  Kentucky,  respecting  the  boundaries  of  said 
states,  and  the  said  state  of  Missouri  complains  that  said 
state  of  Kentucky,  since  the  first  of  January,  1857,  has  un- 
lawfully claimed,  and  exercised  jurisdiction  over  Wolf  Island, 
an  island  in  the  Mississippi  river,  forming  part  of  the  territory 
of  said  state  of  Missouri ;  that  said  states  are  severally 
bounded  at  the  point  in  question  by  the  main  channel  of 
said  river,  and  the  island  was,  at  the  time  said  boundaries 
were  fixed,  and  still  is,  on  the  western,  or  Missouri,  side  of 
the  said  channel. 

Wherefore  plaintiff  prays  that  said  state  of  Kentucky  may 
be  made  a  defendant  to  this  bill,  and  permitted  to  answer  the 
same ;  that  upon  a  final  hearing  of  said  cause,  the  boundary 
herein  claimed  may  be  ascertained  and  established  by  the 
decree  of  this  court,  and  that  the  rights  of  possession,  juris- 
diction, and  sovereignty  of  said  state  of  Missouri  thereto  be 
quieted,  and  the  defendant  forever  enjoined  and  restrained 
from  disturbing  said  plaintiff,  her  officers,  or  people  in  the 
full  possession  and  enjoyment  of  the  same ;  and  the  plain- 
tiff prays  such  other  and  further  relief  as  the  nature  of  the 
case  requires,  and  to  equity  belongs ;  and  plaintiff  will  ever 
pray,  etc.  R.  Y., 

Agent  and  Solicitor  for  Plaintiff. 

(i)  The  Supreme  Court  has  original  jurisdiction  in  cases  in  which  a 
state  is  a  party.  See  Constitution  of  the  United  States,  Art.  III.,  Sec. 
2 ;  R.  S.,  Sec.  687  ;  Gould  &  Tucker's  Notes  to  the  Revised  Statutes,  p. 
136;  Cooley's  Const.  Law,  p.  112. 


No.  702. 

Bill  for  the  Settlement  of  a  Boundary   Between  States 

(i).     (Another  Form). 
\^Captton\. 

To  the  Judges  of  the  Supreme  Court  of  the  United  States.* 

The  State  of  Rhode  Island,  one  of  the  United  States  of 

America,  brings  this  bill  against  the  State  of  Massachusetts, 

also  one  of  the  United  States  of  America. 


ORIGINAL   JURISDICTION.  657 

And  thereupon  your  orator  complains  and  says  that  on  the 
third  day  of  November,  1621,  King  James  the  First  granted 
a  charter  to  the  council  of  Plymouth,  for  planting,  ruling, 
ordering,  and  governing  New  England,  in  America,  in  which 
were  described  the  boundaries  of  the  territory  so  granted,  as 
follows:  \Jiere  describe  the  boundaries]. 

That  afterwards,  to  wit,  on  the  fourth  day  of  March,  1629, 
King  Charles  the  First  incorporated  by  letters  patent  "  The 
Governor  and  Company  of  Massachusetts  Bay,  in  New  Eng- 
land," and  the  council  at  Plymouth  conveyed  to  them  by 
deed  the  lands  above  described. 

Copies  of  said  charters  and  deed  are  hereto  annexed, 
marked  A,  B,  C,  respectively,  and  your  orator  prays  that  they 
may  be  made  a  part  hereof,  as  your  orator  will  be  prepared 
and  prove  the  same. 

Your  orator  further  states  that  afterwards,  on  the  eighth 
day  of  July,  1763,  King  Charles  the  Second,  by  letter  patent, 
granted  a  charter  of  incorporation  to  William  Brenton,  John 
Coddington,  and  others,  by  the  name  of  "The  Governor  and 
Company  of  the  English  Colony  of  Rhode  Island  and  Provi- 
dence Plantations,  in  New  England,  in  America,"  and 
granted  and  conferred  to  the  corporation,  by  letters  patent, 
all  that  part  of  New  England,  in  America,  containing,  etc., 
bounded  on  the  north  or  northerly  by  the  aforesaid  south  or 
southerly  line  of  Massachusetts  colony  or  plantation,  etc. 

Your  orator  further  states  that  the  province  and  colony  of 
Massachusetts  Bay,  and  of  Rhode  Island  and  Providence 
Plantations,  thus  established,  continue  under  the  charts  and 
letters  patent  aforesaid,  with  the  boundary  line  between 
them  as  aforesaid,  unchanged  until  the  fourth  day  of  July, 
1776,  when,  with  their  sister  colonies,  they  became  inde- 
pendent states  of  the  Union. 

Your  orator  further  states  that  the  true  boundary  line  be- 
tween the  State  of  Rhode  Island  and  Providence  Plantations, 
and  the  Commonwealth  of  Massachusetts,  by  virtue  of  the 
charters  aforesaid  from  the  English  Crown,  is  a  line  run  east 


658  U.  S.  SUPREME   COURT. 

and  west  three  miles  south  of  Charles  river,  or  any  or  every 
part  thereof. 

Your  orator  further  states  that  the  Commonwealth  of  Mas- 
sachusetts holds  possession  to  a  line  eight  miles  south  of 
Charles  river,  or  any  part  thereof,  and  one  that  does  not  run 
east  and  west,  but  south  of  a  west  and  north  of  a  northeast 
course;  that  the  territory  between  this  line  and  the  one 
above  described  belongs  to  the  State  of  Rhode  Island,  and 
that  the  defendant  unjustly  withholds  the  possession  thereof 
from  her  and  exercises  acts  of  sovereignty  over  it. 

Your  orator  further  states  that  in  consequence  of  various 
disputes  and  controversies  about  the  boundary  between  the 
two  colonies,  and  subsequently  between  said  states,  numer- 
ous efforts  were  made   to  adjust  the  same ;    that  about  the 

year ,  commissioners  were  appointed  by  the  legislatures 

of  said  colonies  respectively  for  the  purpose  of  ascertaining 
and  settling  said  boundary,  but  they  were  never  able  to  agree 
upon  or  settle  the  same. 

Your  orator  further  states  that  the  defendant  herein  claims 
that  the  boundary  line  was  settled  and  adjusted  by  said  com- 
missioners acting  for  the  two  colonies  and  under  the  au- 
thority of  the  colonies  respectively,  and  that  this  settlement 
has  been  acquiesced  in  by  the  plaintiff.  But  your  orator  states 
that  there  were  errors  in  the  proceedings  of  the  said  com- 
missioners; that  they  were  misinformed  and  mistaken  as  to 
a  monument  alleged  to  have  been  set  up  long  anterior  to  the 
appointment  of  said  commissioners,  by  Nathaniel  Woodward 
and  Solomon  Caffrey,  and  which  they  fixed  upon  and  assumed 
to  be  on  the  boundary  line  three  miles  south  of  any  part  of 
Charles  river,  without  any  actual  survey  or  measurements, 
etc. ;  that  the  line  thus  fixed  upon  was  in  fact  eight  miles 
south  of  any  part  of  Charles  river,  and  has  always  been  ob- 
jected to  and  resisted  by  the  plaintiff,  and  never  acquiesced 
in  as  the  true  boundary  line  between  said  states ;  that  the 
agreement  of  the  said  commissioners  was  not  accepted  or 
ratified  by  the  plaintiff;  that  no  stake  or  monument  existed 


ORIGINAL   JURISDICTION.  659 

on  said  line  as  assumed  by  said  commissioners ;  and  that  she 
never  admitted  any  line  as  the  true  boundary,  except  the  one 
called  for  by  the  charters  aforesaid. 

Wherefore  the  complainant  prays  that  the  said  defendant 
may  be  required  to  answer  the  matters  set  forth  in  this  bill ; 
that  the  northern  boundary  line  between  the  plaintiflf  and 
the  state  of  Massachusetts  may,  by  the  order  and  decree 
of  this  honorable  court,  be  ascertained  and  established  ;  that 
possession  and  rights  of  jurisdiction  and  sovereignty  to  the 
whole  tract  of  land,  with  the  appurtenances  mentioned,  de- 
scribed, and  granted  in  and  by  the  said  charter  or  letters- 
patent  to  the  said  colony  of  Rhode  Island  and  Providence 
Plantations,  hereinbefore  set  forth,  and  running  on  the  north 
by  an  east  and  west  line  drawn  three  miles  south  of  the 
waters  of  said  Charles  river  or  of  any  and  every  part  thereof, 
may  be  restored  and  confirmed  to  the  plaintiff;  that  the 
plaintiff  may  be  quieted  in  the  full  and  free  enjoyment 
of  her  possession,  jurisdiction,  and  sovereignty  over  the 
same,  and  the  title,  possession,  jurisdiction,  and  sovereignty 
of  Rhode  Island  and  Providence  Plantations  over  the  same 
be  confirmed  and  established  by  the  decree  of  this  court; 
and  that  the  plaintiff  may  have  such  other  and  further  re- 
lief in  the  premises  as  to  the  court  shall  seem  meet  and  con- 
sistent with  equity  and  good  conscience. 

May  it  please  your  honors  to  grant  unto  your  orator  a  writ 
of  subpoena  under  the  seal  of  this  honorable  court,  directed 
to  the  governor  and  attorney-general  of  the  state  of  Massa- 
chusetts, commanding  them,  on  a  day  certain  to  be  named 
and  under  a  certain  penalty,  to  be  and  appear  in  this  honor- 
able court,  then  and  there  to  answer,  on  behalf  of  said  state, 
all  and  singular  the  premises,  and  on  behalf  of  said  state 
stand  to  perform  and  abide  such  further  order,  direction, 
and  decree  as  may  be  made  against  said  state. 

And  your  orator  will  ever  pray,  etc.  R.  X., 

Solicitor  for  Plaintiff. 

S.  X.,  of  Counsel. 

(i)  See  note  to  No.  701. 


66o  U.  S.  SUPREME   COURT. 

No.  703. 

Subpcena  in  a  Suit  by  one  State  against  another. 

[^Caption^ 
The  President  of  the  United  States  to  the  Governor  and 
Attorney-General  of  the  State  of ,  Greeting : 

For  certain  causes  offered  before  the  supreme  court  of  the 
United  States  holding  jurisdiction  in  equity,  you  are  hereby 
commanded,  and  strictly  enjoined  that,  laying  all  matters 
aside  and  notwithstanding  any  excuse,  you  personally  be 

and  appear  on  behalf  of  the  people  of  said  state  of  

before  the  said  supreme  court  holding  jurisdiction  in  equity, 

on  the  first  Monday  in next,  at  the  city  of  Washington, 

in  the  District  of  Columbia,  being  the  present  seat  of  the 
national  government  of  the  United  States,  to  answer  con- 
cerning things  which  shall  then  and  there  be  objected  to 
said  state,  and  to  do  further,  and  receive  on  behalf  of  said 
state,  what  the  said  supreme  court  holding  jurisdiction  in 
equity  shall  have  considered  in  this  behalf;  and  this  you 
may  in  no  wise  omit,  under  the  penalty  of dollars. 

Witness  the  Honorable   Melville  W.  Fuller,  chief  justice 

of  the  said  supreme  court,  at  Washington  City,  this  

day  of ,  1894.  S.  G., 

[►S<?a/.]  Clerk  of  the  Supreme  Court. 


No.  704. 

Return  of  Service  of  Subpoena  on  a  State  (i). 

[Caption^ 

The  within  subpoena  was  served  upon  J.  K.,  governor  of 

the  state  of ,  at ,  on  the day  of ,  1894,  by 

delivering  to  and  leaving  with  him  a  copy  thereof,  and  at  the 
same  time  showing  him  the  original  with  the  seal  of  the 
court  attached;  also,  on  L.  M.,  attorney-general  of  said  state, 

at  ,  on  the  day  of  ,   1894,  by  delivering  to 

him  a  copy  thereof,  and  at  the  same  time  showing  him  this 
original  with  the  seal  of  the  court  attached.  H.  C, 

Dated .  United  States  Marshal. 

(i)  In  case  of  service  by  copy  see  No.  32. 


ORIGINAL   JURISDICTION.  66 1 

No.  705. 

Petition  for  Writ  of  Prohibition  (i). 

In  the  Supreme  Court  of  the  United  States. 

Ex  parte  Thomas  Henry  Cooper,  Owner  ^  ^     

and  Claimant  of  the  British  Schooner  >  r^  •*  '•     T' 
"W.  P.  Sayward."  JOrigmal. 

To  the  Honorable,  the  Chief  Justice  and  Associate  Justices 
of  the  Supreme  Court  of  the  United  States. 

Comes  now  Thomas  ilenry  Cooper,  a  British  subject,  and 
gives  this  honorable  court  to  understand  and  be  informed: 

That  whereas,  by  the  law  of  nations,  the  municipal  laws 
of  a  country  have  no  extra  territorial  force,  and  can  not 
operate  on  foreign  vessels  on  the  high  seas,  and  it  is  legally 
Impossible,  under  the  public  law,  for  a  foreign  vessel  to  com- 
mit a  breach  of  municipal  law  beyond  the  limits  of  the  ter- 
ritorial jurisdiction  of  the  law-making  state  ; 

And  whereas,  the  seizure  of  a  foreign  vessel  beyond  the 
limits  of  the  municipal  territorial  jurisdiction  for  breach  of 
municipal  regulations  is  not  warranted  by  the  law  of  nations, 
and  such  seizure  can  not  give  jurisdiction  to  the  courts  of 
the  offended  country,  least  of  all  where  the  alleged  act  was 
committed  by  the  foreign  vessel  at  the  place  of  seizure  be- 
yond the  municipal  territorial  jurisdiction  ; 

And  whereas,  by  the  law  of  nations,  a  British  vessel  sail- 
ing on  the  high  seas  is  not  subject  to  any  municipal  law  ex- 
cept that  of  Great  Britain ;  and  by  the  said  law  of  nations  a 
British  ship  so  sailing  on  the  high  seas  ought  not  to  be 
arrested,  seized,  attached,  or  detained  under  color  of  any  law 
of  the  United  States  ; 

And  whereas,  by  the  laws  of  the  United  States,  as  well  as 
by  the  law  of  nations,  the  district  courts  of  the  United  States 
have  not,  and  ought  not  to  entertain,  jurisdiction,  or  hold 
plea  of  an  alleged  breach  upon  the  high  seas  of  the  muni- 
cipal laws  of  the  United  States  by  the  captain  and  crew  of  a 
British  vessel,  and  can  acquire  no  jurisdiction  by  a  seizure 


662  U.  S.  SUPREME  COURT. 

of  such  vessel  on  the  high  seas,  though  she  be  afterwards 
brought  by  force  within  the  territorial  limits  of  the  jurisdic- 
tion of  said  courts; 

And  whereas,  on  the  ninth  day  of  July,  1887,  there  was 
between  the  governments  and  people  of  Great  Britain  and 
the  United  States  profound  peace  and  friendship,  which  re- 
lation of  peace  and  friendship  had  happily  subsisted  for 
nearly  three  quarters  of  a  century  before  the  said  ninth  day 
of  July,  1887,  and  still  endure,  to  the  great  comfort  and  hap- 
piness of  two  kindred  peoples ; 

And  whereas,  on  the  said  ninth  day  of  July,  1887,  the 
schooner  "W.  P.  Sayward,"  a  British  vessel,  duly  registered 
and  documented  as  such,  and  having  her  home  port  at  Vic- 
toria, in  the  province  of  British  Columbia,  Dominion  of 
Canada,  and  commanded  by  one  George  R.  Ferry,  a  British 
subject,  as  captain  and  master  thereof,  was  lawfully  and 
peacefully  sailing  on  the  high  seas,  to  wit,  in  latitude  54°  43' 
north,  longitude  167°  51'  west,  fifty-nine  miles  from  any  land 
whatsoever,  and  then  being  fifty-nine  miles  northwest  from 
Cape  Cheerful,  Oonalaska  Island,  upon  waters  between  Oona- 
laska  and  Prybyloff  Islands,  in  the  Behring  Sea,  as  more 
fully  appears  by  the  chart  in  the  record  of  the  proceedings 
of  the  district  court  of  the  United  States  in  and  for  the  terri- 
tory of  Alaska  hereinafter  referred  to ; 

And  whereas,  said  schooner  was  at  said  time  and  place 
unlawfully  and  forcibly  seized  and  arrested  by  an  armed 
vessel  of  the  United  States  revenue  marine,  to  wit,  the 
United  States  revenue  cutter,  "Rush,"  cruising  under  in- 
structions of  the  secretary  of  the  treasury  of  the  United 
States  for  the  sole  purpose  of  enforcing  the  municipal  law 
of  the  United  States,  and  the  said  British  schooner  was 
thereupon  unlawfully,  wrongfully,  and  forcibly  detained  and 
seized,  and  was  by  force  taken  by  the  said  "  Rush"  to  the  port 
of  Sitka,  in  the  territory  of  Alaska,  United  States  of  America, 
and  within  the  territory  of  Alaska  and  the  waters  thereof, 
and  within  the  dominion  of  the  United  States,  in  Behring 
Sea. 


ORIGINAL   JURISDICTION.  663 

\The  petitio7t  then  recites  the  proceedings  taken  in  the  district 
court  for  the  district  of  Alaska  by  the  United  States  attorjtey 
against  the  schooner  for  an  alleged  violation  of  see  i<)^6  of  the 
Revised  Statutes^  the  allegations  of  the  libel^  and  proceeds  as 
follow  sf\ 

Without  this,  however,  and  the  said  M.  D.  Ball,  the  United 
States  attorney,  not  in  any  way  alleging,  or  articulating,  that 
the  said  seizure  was  made,  or  the  said  killing  of  seal  was 
done,  within  any  river  or  bay  of  the  United  States,  or  within 
a  marine  league  of  the  coast  of  any  portion  of  the  mainland 
or  any  island  belonging  to  the  United  States,  or  that  the  said 
vessel  and  her  master  and  crew  were  subject  to  the  laws  of 
the  United  States  sailing  upon  the  high  seas,  or  that  any  por- 
tion of  the  high  seas  beyond  a  marine  league  from  the  coasts 
of  the  mainland  or  adjacent  islands  was  within  the  jurisdiction 
of  the  United  States. 

\The  petition  then  recites  the  trial^  the  decision  of  the  district 
court  against  the  schooner^  the  motion  made  by  the  petitioner  in 
arrest  of  judgment  ^  the  decree  of  forfeiture^  the  appeal  taken  by 
the  petitioner  to  the  suprerne  court ^  and  concludes  as  follows  .•] 

And  whereas  all  matters  of  facts  hereinbefore  recited  and 
alleged,  save  and  except  those  of  which  this  honorable  court 
takes  judicial  notice,  appear  by  the  record  and  proceedings  of 
the  district  court  of  the  United  States  in  and  for  the  territory 
of  Alaska. 

And  whereas  the  said  appeal  has  been  dismissed  by  this 
honorable  court  on  the  application  of  the  claimant,  appellant, 
himself  not  only  because  he  is  advised  that  there  is'  no 
appeal  given  to  this  court  from  the  district  of  Alaska  by  the 
laws  of  the  United  States,  but  because  he  is  advised  that  the 
district  court,  being  wholly  without  jurisdiction,  its  decree 
was  and  is  a  nullity,  and  this  honorable  court  is  fully  author- 
ized by  Section  688  of  the  Revised  Statutes  of  the  United 
States  to  prohibit  any  proceedings  in  the  district  court  for  the 
enforcement  of  the  same. 

And  whereas  the  said  Thomas  Henry  Cooper  is  advised 
that  in  consequence  of  the  dismissal  of  his  appeal,  according 


664  U.  S.  SUPREME   COURT. 

to  the  practice  of  this  honorable  court,  its  mandate  will  issue 
in  due  course  without  further  consideration  by  this  court, 
which  said  mandate  would,  in  ordinary  course,  not  only 
permit,  but  command  the  district  court  of  Alaska  to  proceed 
to  execute  its  pretended  decree  of  forfeiture,  and  it  is  there- 
fore the  duty  of  the  said  Thomas  Henry  Cooper,  now  here, 
to  give  this  honorable  court  to  understand  and  be  informed 
of  all  and  singular  the  matters  in  this  suggestion  recited  and 
alleged,  to  the  end  that  this  court  shall  consider  this  applica- 
tion for  prohibition  before  issuing  its  mandate,  so  that  it  may 
either  frame  a  special  mandate,  or  take  order  that  the  ordinary 
mandate  shall  not  reach  the  district  court  before  the  writ  of 
prohibition  hereinafter  prayed,  or  a  rule  to  show  cause  why 
said  writ  should  not  issue,  shall  be  served  upon  said  court. 

Wherefore  the  said  Thomas  Henry  Cooper,  the  aid  of  this 
honorable  court  most  respectfully  requesting,  prays  remedy 
by  writ  of  prohibition  to  be  issued  out  of  this  honorable  court 
to  the  judge  of  the  district  court  of  the  United  States  in  and 
for  the  territory  of  Alaska  to  be  directed,  to  prohibit  him 
from  holding  the  plea  aforesaid,  the  premises  aforesaid,  any- 
wise concerning  further  before  him,  and  to  prohibit  him  from 
in  any  manner  enforcing  the  said  decree  or  sentence,  or  from 
treating  the  said  decree  as  a  valid  sentence  for  any  purpose, 
or  from  taking  any  steps  whatsoever  in  the  cause  aforesaid 
as  to  said  decree,  or  any  matter  or  thing  remaining  to  be 
done  in  consequence  of  said  decree,  and  prohibiting  him,  the 
said  judge,  from  making  or  entering  any  order,  judgment,  or 
decree  in  and  about  the  certain  stipulation  exacted  and  re- 
quired in  the  course  of  said  proceedings,  and  generally  from 
the  further  exercise  of  jurisdiction  in  said  cause,  or  the  en- 
forcing any  order,  judgment,  or  decree  made  under  color 
thereof.  Joseph  H.  Choate, 

of  Counsel. 


ORIGINAI.   JURISDICTION.  665 

No.  706. 

Verification  of  above  Petition. 

I  have  read  the  foregoing  petition  by  me  subscribed,  and 
the  facts  therein  stated  are  true  to  the  best  of  my  informa- 
tion and  belief.  '         Joseph  H.  Choate. 

Subscribed  and  sworn  to  before  me  this  12th  day  of  Jan- 
uary, 1 89 1.  Oscar  Luckett, 

[Seal.]  '    Notary  Public. 

(i)  Taken  from  record  in  re  Cooper,  138  U.  S.,  404.  With  reference 
to  the  jurisdiction  of  the  Supreme  Court  to  issue  writs  of  prohibition, 
see  R.  S.  Sec.  688 ;   see  also  Foster's  Fed.  Prac,  Sees.  361,  362. 


No.  707. 

Suggestion  for  Writ  of  Prohibition  (i). 

In  the  Supreme  Court  of  the  United  States. 
Ex  parte  Sir  John  Thompson,  K.  C.  M.  G.,  ^       ^ 

Her  Britannic  Maiesty's  Attorney-Gen-  V  '   .   .    ", 

eral  of  Canada.  j  Origmal. 

To  the  Honorable,  the  Chief  Justice  and  Associated  Justices 
of  the  Supreme  Court  of  the  United  States  : 

Comes  now  Sir  John  Thompson,  K.  C.  M.  G.,  Her  Bri- 
tannic Majesty's  attorney-general  of  Canada,  and  gives  this 
honorable  court  to  understand  and  be  informed : 

That  whereas,  by  the  law  of  nations  the  municipal  laws  of 
a  country  have  no  extraterritorial  force,  and  can  not  operate 
on  foreign  vessels  on  the  high  seas,  and  it  is  legally  impossi- 
ble, under  the  public  law,  for  a  foreign  vessel  to  commit  a 
breach  on  municipal  law  beyond  the  limits  of  the  territorial 
jurisdiction  of  the  law-making  state  ; 

And  whereas,  the  seizure  of  a  foreign  vessel  beyond  the 
limits  of  the  municipal  territorial  jurisdiction  for  breach  of 
municipal  regulations  is  not  warranted  by  the  law  of  nations, 
and  such  seizure  can  not  give  jurisdiction  to  the  courts  of 
the  oflfended  country,  least  of  all  where  the  alleged  act  was 


666  U;  S,  SUPREME    COURT. 

committed  by  the  foreign  vessel  at  the  place  of  seizure  be- 
yond the  municipal  territorial  jurisdiction  ; 

And  whereas,  by  the  laws  of  nations  a  British  vessel  sail- 
ing on  the  high  seas  is  not  subject  to  any  municipal  law  ex- 
cept that  of  Great  Britain ;  and  by  the  said  law  of  nations  a 
British  ship  so  sailing  on  the  high  seas  ought  not  to  be  ar- 
rested, seized,  attached,  or  detained  under  color  of  any  law 
of  the  United  States  ; 

And  whereas,  by  the  laws  of  the  United  States,  as  well  as 
by  the  law  of  nations,  the  district  courts  of  the  United  States 
have  not,  and  ought  not,  to  entertain  jurisdiction  or  hold 
plea  of  an  alleged  breach  upon  the  high  seas  of  the  munici- 
pal laws  of  the  United  States  by  the  captain  and  crew  of  a 
British  vessel,  and  can  acquire  no  jurisdiction  by  a  seizure  of 
such  vessel  on  the  high  seas,  though  she  be  afterwards 
brought  by  force  within  the  territorial  limits  of  the  jurisdic- 
tion of  said  courts ; 

And  whereas,  on  the  ninth  day  of  July,  1887,  there  was 
between  the  governments  and  peoples  of  Great  Britain  and 
the  United  States  profound  peace  and  friendship,  which  re- 
lations of  peace  and  friendship  had  happily  subsisted  for 
nearly  three-quarters  of  a  century  before  the  said  ninth  day 
of  July,  1887,  and  still  endure  to  the  great  comfort  and  hap- 
piness of  two  kindred  peoples ; 

And  whereas,  on  the  said  ninth  day  of  July,  1887,  the 
schooner  "  W.  P.  Sayward,"  a  British  vessel,  duly  registered 
and  documented  as  such,  and  having  her  home  port  at  Vic- 
toria, in  the  province  of  British  Columbia,  Dominion  of 
Canada,  and  commanded  by  one  George  R.  Ferry,  a  British 
subject,  as  captain  and  master  thereof,  was  lawfully  and 
peaceably  sailing  on  the  high  seas,  to  wit,  in  latitude  54°  43' 
north,  longitude  167°  51'  west,  fifty-nine  miles  from  any 
land  whatsoever,  and  then  being  fifty-nine  miles  northwest 
from  Cape  Cheerful,  Oonalaska  Island,  upon  waters  between 
Oonalaska  and  PrybylofF  Islands,  in  Behring's  Sea,  as  more 
fully  appears  by  the  chart  in  the  record  of  the  proceedings  of 


ORIGINAL   JURISDICTION.  66/ 

the  district  court  of  the  United  States  in  and  for  the  teiri- 
tory  of  Alaska  hereinafter  referred  to  ; 

And  whereas,  said  schooner  was  at  said  time  and  place 
unlawfully  and  forcibly  seized  and  arrested  by  an  armed  ves- 
sel of  the  United  States  revenue  marine,  to  wit,  the  U.  S. 
revenue  cutter  "Rush,"  cruising  under  instructions  of  the 
secretary  of  the  treasury  of  the  United  States,  for  the  sole 
purpose  of  enforcing  the  municipal  law  of  the  United  States, 
and  the  said  British  schooner  was  thereupon  unlawfully, 
wrongfully,  and  forcibly  detained  and  seized,  and  was  by 
force  taken  by  the  said  '*  Rush"  to  the  port  of  Sitka,  in  the 
territory  of  Alaska,  United  States  of  America,  and  within  the 
territory  of  Alaska  and  waters  thereof,  and  within  the 
dominion  of  the  United  States  in  Behring's  Sea  ; 

And  whereas,  the  British  schooner,  being  as  aforesaid  so 
unlawfully,  wrongfully,  and  forcibly  seized  on  the  high  seas 
and  without  the  limits  of  Alaska  Territory  or  the  waters 
thereof,  and  being  so  unlawfully,  wrongfully,  and  forcibly 
brought  within  the  limits  of  Alaska  Territory,  and  the  waters 
thereof,  nevertheless  a  certain  M.  D.  Ball,  an  attorney  of  the 
United  States  for  the  district  of  Alaska,  not  ignorant  of  the 
premises,  but  unmindful  of  the  danger  of  disturbing  the 
peace  and  harmony  subsisting  between  the  United  States  and 
Great  Britain,  did  by  process  out  of  the  district  court  of  the 
United  States  in  and  for  the  district  of  Alaska,  attach  and 
arrest  the  said  schooner  "  W.  P.  Say  ward,"  so,  as  aforesaid, 
wrongfully  seized  while  lawfully  sailing  on  the  high  seas  un- 
der the  protection  of  the  law  of  nations,  and  so,  as  aforesaid, 
wrongfully  and  forcibly  brought  within  the  said  port  of  Sitka, 
in  the  territory  of  Alaska,  and  before  the  judge  of  the  said 
district  court,  contrary  to  the  said  law  of  nations,  and  the 
laws  of  the  United  States,  did  unjustly  draw  in  plea  to  an- 
swer a  certain  libel  by  him,  the  said  M.  D.  Ball,  against  the 
said  schooner,  her  tackle,  apparel,  boats,  cargo,  and  furniture 
exhibited  and  promoted,  craftily  and  subtlely  therein  alleging 
and  articulating  that  the  said  schooner  "W.  P.  Sayward,"  her 


668  U.  S.  SUPREME   COURT-. 

tackle,  apparel,  boats,  cargo,  and  furniture,  were  seized  on  the 
ninth  day  of  July,  1887,  within  the  limits  of  Alaska  Territory, 
and  in  the  waters  thereof,  and  within  the  civil  and  judicial 
district  of  Alaska,  to  wit,  within  the  waters  of  that  portion 
of  Behring's  Sea  belonging  to  the  United  States  and  said 
district,  and  that  all  said  property  was  then  and  there  seized 
as  forfeited  to  the  United  States  for  the  following  causes  : 
That  the  said  vessel,  and  her  captain,  officers,  and  crew  were 
then  and  there  found  engaged  in  killing  fur  seal  within  the 
limits  of  Alaska  Territory,  and  in  the  said  waters  thereof,  in 
violation  of  section  nineteen  hundred  and  fifty-six  of  the  Re- 
vised Statutes  of  the  United  States,  and  that  on  said  ninth 
day  of  July,  1887,  George  R.  Ferry  and  certain  other  persons 
whose  names  were  to  said  attorney  unknown,  who  were  then 
and  there  engaged  on  board  the  said  schooner  "W.  P.  Say- 
ward,"  as  seamen  and  seal  hunters,  did,  under  the  direction 
and  by  the  authority  of  George  R.  Ferry,  then  and  there  mas- 
ter of  said  schooner,  engage  in  killing,  and  did  kill  in  the 
territory  and  district  of  Alaska,  and  in  the  waters  thereof, 
thirty  fur  seals,  in  violation  of  Section  1956  of  the  Revised 
Statutes  of  the  United  States  in  such  cases  made  and  pro- 
vided. Without  this,  however,  and  the  said  M.  D.  Ball  not 
in  any  way  alleging,  or  articulating,  that  the  said  seizure 
was  made,  or  the  said  killing  of  seal  was  done  within  any 
river  or  bay  of  the  United  States,  or  within  a  marine  league 
of  the  coast  of  any  portion  of  the  mainland  or  any  island 
belonging  to  the  United  States,  and  that  the  said  vessel  and 
her  master  and  crew  were  subject  to  the  laws  of  the  United 
States  sailing  upon  the  high  seas,  or  that  any  portion  of  the 
high  seas  beyond  a  marine  league  from  the  coasts  of  the 
mainland  or  adjacent  islands  was  within  the  jurisdiction  of 
the  United  States; 

And  whereas,  a  demurrer  by  claimant,  filed  on  the  fifteenth 
day  of  September,  1887,  alleging  the  insufficiency  of  the  libel, 
was  overruled  by  the  Court  on  the  said  fifteenth  day  of  Sep- 
tember, 1887,  and  thereafter  the  claimant  filed  his  answer, 


ORIGINAL   JURISDICTION.  669 

specifically  denying  the  allegations  of  the  libel  that  the  seiz- 
ure aforesaid  was  made  within  the  waters  of  Alaska  Territory, 
or  within  the  civil  or  judicial  district  of  Alaska  or  in  any 
portion  of  Behring's  Sea  belonging  to  the  United  States,  and 
specifically  denying  the  allegations  of  the  libel  that  the  said 
vessel,  her  captain,  officers,  and  crew  were  then  and  there 
found  engaged  in  killing  fur  seal  within  the  limits  of  Alaska 
Territory,  or  in  the  waters  thereof,  or  that  any  of  them  did 
kill  any  fur  seal  therein ; 

And  whereas,  at  the  trial  of  said  cause,  the  libellant, 
through  its  witnesses,  by  it  called  in  that  behalf,  to  wit,  the 
captain  and  officers  of  the  "  Rush,"  did  make  plain  and  clear 
to  the  court  what  was  not  clearly  disclosed  in  the  libel,  that 
is  to  say,  the  place  of  the  alleged  offense,  and  the  place  of 
said  seizure,  and  did  support  the  averments  of  the  claim- 
ant's answer,  and  by  its  evidence  so  offered  in  its  behalf  and 
not  gainsaid  in  any  way,  did  show  that  the  place  of  the 
alleged  killing  of  seal  was  without  the  limits  of  Alaska  Ter- 
ritory or  the  waters  thereof,  and  that  the  said  seizure  was  not 
made,  nor  said  killing  of  seal  done,  within  the  waters  of 
Alaska  Territory,  or  within  the  civil  or  judicial  district  of 
Alaska,  or  in  any  portion  of  Behring's  Sea  belonging  to  the 
United  States,  but  that  the  place  of  the  alleged  offense,  and 
the  place  of  said  seizure,  was  upon  the  high  seas,  to  wit,  in  lati- 
tude 54°  43'  north,  and  longitude  i67°5i'  west,  fifty-nine  miles 
from  any  land  whatsoever,  and  fifty-nine  miles  northwest 
from  Cape  Cheerful,  Oonalaska  Island,  upon  waters  between 
Oonalaska  and  Prybyloff  Islands,  in  Behring's  Sea,  which 
said  testimony  for  libellant,  as  to  place  of  seizure,  and  place 
of  alleged  offense,  was  supported  by  that  of  the  claimant. 
So  that  the  judge  of  the  district  court  of  the  United  States 
for  the  district  of  Alaska  was  fully  informed  that  the  seizure 
had  been  made,  and  the  said  alleged  killing  of  seal  done  on 
the  high  seas  without  the  limits  of  Alaska  Territory  or  the 
waters  thereof,  and  that  said  vessel  was  brought  by  force 
within  the  jurisdiction    of  said    court,   and  that,  therefore. 


670  U.  S.  SUPREME   COURT. 

under  the  laws  of  nations,  and  under  the  laws  ot  the  United 
States,  he  had,  and  could  have,  no  jurisdiction  of  the  alleged 
offense,  or  of  the  vessel  so  as  aforesaid  unlawfully,  wrong- 
fully, and  tortiously  seized  without  the  jurisdiction  of  the 
United  States  and  of  the  court,  and  so  wrongfully  and  by 
force  brought  within  the  jurisdiction  of  the  United  States 
and  of  the  court,  yet,  nevertheless,  being  so  fully  advised, 
said  judge  of  the  district  court  of  Alaska  aforesaid  did,  on 
the  nineteenth  day  of  September,  1887,  in  contempt  of  the 
authority  of  the  United  States,  in  violation  of  the  laws 
of  the  United  States,  and  of  the  laws  of  nations,  and  to  the 
great  danger  of  the  friendly  relations  happily  subsisting  be- 
tween Great  Britain  and  the  United  States,  assert  and  attempt 
to  exercise  jurisdiction  over  the  said  vessel,  the  same  being 
the  vessel  of  a  friendly  nation  at  peace  with  the  United  States, 
knowing  the  same  to  have  been  unlawfully  seized  on  the 
high  seas  without  the  jurisdiction  of  the  United  States,  to 
be  alleged  and  proved  to  be  the  same  place  as  the  place  of 
seizure,  that  is  to  say  the  high  seas,  without  the  limits  of  the 
territory  of  Alaska  or  the  waters  thereof,  and  without  the 
jurisdiction  of  the  United  States;  all  this  the  said  judge  well 
knowing,  he  did  find  as  fact  the  killing  of  fur  seal  on  the 
ninth  day  of  July,  1887,  by  the  captain  and  crew  of  the  afore- 
said British  vessel,  the  "  W.  P.  Sayward,"  at  the  said  place 
of  seizure  as  aforesaid,  and  did  find  as  conclusion  of  law 
that  such  killing  at  such  place  on  the  high  seas,  to  wit,  at 
the  said  place  of  seizure  in  latitude  54°  43'  north,  and  longi- 
tude 167°  51'  west,  and  fifty-nine  miles  from  any  land  what- 
soever, and  fifty-nine  miles  northwest  from  Cape  Cheerful, 
Oonalaska  Island,  was  in  violation  of  Section  1956  of  the 
Revised  Statutes  of  the  United  States,  and  by  reason  thereof 
the  libellant  was  entitled  to  a  decree  of  forfeiture  of  said 
British  vessel,  her  tackle,  apparel,  boats,  cargo,  and  furniture ; 
And  whereas,  after  said  assertion  of  jurisdiction  to  con- 
demn and  forfeit  said  vessel,  and  before  decree  or  sentence, 
the  claimant  did  move  the  court  to  arrest  the  decree  of  for- 


ORIGINAL   JURISDICTION.  67 1 

feiture,  and  among  other  grounds  did  distinctly  set  up  that 
the  court  had  no  jurisdiction  over  the  subject-matter  of  the 
cause,  as  shown  by  libellant's  own  testimony  as  to  place  of 
offense  and  seizure. 

Yet  the  said  court  did,  nevertheless,  in  contempt  of  the 
authority  of  the  United  States,  and  in  violation  of  the  laws 
of  the  United  States,  and  in  violation  of  the  laws  of  nations, 
and  to  the  manifest  danger  of  the  peaceful  relations  of  the 
two  countries,  assert  and  attempt  to  exercise  jurisdiction 
in  the  premises;  and  on  the  nineteenth  day  of  September, 
1887,  ^i<i  make  and  enter  a  pretended  decree  of  forfeiture  to 
the  United  States  of  said  vessel,  her  tackle,  apparel,  boats, 
cargo,  and  furniture,  and  direct  that  unless  an  appeal  be 
taken,  the  usual  writ  of  venditioni  exponas  be  issued  to  the 
marshal,  commanding  him  to  sell  all  said  property  and  bring 
the  proceeds  into  court  to  be  distributed  according  to  law, 
costs  to  be  taxed  and  awarded  against  the  claimants. 

And  whereas,  one  Thomas  Henry  Cooper,  a  British  sub- 
ject, being  admitted  as  the  actual  owner  of  the  said  schooner 
"  W.  P.  Sayward,"  by  order  of  the  district  court  to  interpose 
as  claimant,  did,  in  order  to  prevent  the  execution  of  said  de- 
cree, take  an  appeal  to  this  honorable  court  on  the  twenty- 
sixth  day  of  April,  1888,  and  docketed  the  same  on  the  thir- 
tieth day  of  October,  1888,  under  No, . 

And  whereas,  all  matters  of  fact  hereinbefore  recited  and 
alleged,  save  and  except  those  of  which  this  honorable  court 
takes  judicial  notice,  appear  by  the  record  and  proceedings 
of  the  district  court  of  the  United  States  in  and  for  the  terri- 
tory of  Alaska ;     . 

And  whereas,  the  said  appeal  has  been  dismissed  by  this 
honorable  court  on  the  application  of  the  claimant,  appel- 
lant himself,  not  only  because  he  was  advised  that  there  is 
no  appeal  given  to  this  court  from  the  district  of  Alaska  by 
the  laws  of  the  United  States,  but  because  he  is  advised  that 
the  district  court  beingwholly  without  jurisdiction,  its  decree 
was,  and  is,  a  nullity,  and  this  honorable  court  is  fully  author- 


672  U.  S.  SUPREME   COURT. 

ized  by  Section  688  of  the  Revised  Statutes  of  the  United 
States  to  prohibit  any  proceedings  in  the  district  court  for 
the  enforcement  of  the  same ; 

And  whereas,  the  said  Sir  John  Thompson,  her  Britannic 
majesty's  attorney-general  of  Canada,  is  advised  that  in  con- 
sequence of  the  dismissal  of  the  appeal,  according  to  the 
practice  of  this  honorable  court,  its  mandate  will  issue  in  due 
course,  without  further  consideration  by  this  court,  which 
said  mandate  would,  in  ordinary  course,  not  only  permit,  but 
command,  the  district  court  of  Alaska  to  proceed  to  execute 
the  pretended  decree  of  forfeiture,  and  it  is  therefore  emi- 
nently proper  that  this  honorable  court  should  understand 
and  be  informed  of  all  and  singular  the  matters  in  this  sug- 
gestion recited  and  alleged,  to  the  end  that  this  court  shall 
consider  this  suggestion  for  prohibition  before  issuing  its 
mandate,  so  that  it  may  either  frame  a  special  mandate  or 
take  order  that  the  ordinary  mandate  shall  not  reach  the  dis- 
trict court  before  the  writ  of  prohibition  herein  suggested,  or 
a  rule  to  show  cause  why  said  writ  should  not  issue,  shall  be 
served  upon  this  court. 

Wherefore  the  said  Sir  John  Thompson,  K.  C.  M.  G.,  her 
Britannic  majesty's  attorney-general  of  Canada,  the  aid  of  this 
honorable  court  most  respectfully  requesting,  for  said  Thomas 
Henry  Cooper,  submits  to  this  honorable  court  that  a  writ  of 
prohibition  ought  to  be  issued  out  of  this  honorable  court  to 
the  judge  of  the  district  court  of  the  United  States  in  and 
for  the  territory  of  Alaska  to  be  directed,  to  prohibit  him. 
from  holding  the  plea  aforesaid,  the  premises  aforesaid,  any- 
wise concerning  further  before  him,  and*  to  prohibit  him 
from  in  any  manner  enforcing  the  said  decree  or  sentence, 
or  from  treating  the  said  decree  as  a  valid  sentence,  for  any 
purpose,  or  from  taking  any  steps  whatsoever  in  the  cause 
aforesaid  as  to  said  decree,  or  any  matter  or  thing  remaining 
to  be  done  in  consequence  of  said  decree,  and  prohibiting 
him,  the  said  judge,  from  making  or  entering  any  order, 
judgment,  or  decree  in  or  about  the  certain  stipulation  ex- 


ORIGINAL   JURISDICTION.  673 

acted  and  required  in  the  course  of  said  proceedings,  and 
generally  from  the  further  exercise  of  jurisdiction  in  said 
cause,  or  the  enforcing  any  order,  judgment,  or  decree 
made  under  color  thereof. 

And  the  said  Sir  John  Thompson,  K.  C.  M.  G.,  her  Bri- 
tannic majesty's  attorney-general  of  Canada,  most  respect- 
fully informs  this  honorable  court  that  the  fact  that  this,  his 
suggestion,  is  presented  with  the  knowledge  and  approval  of 
the  imperial  government  of  Great  Britain,  will  be  brought 
to  the  attention  of  the  court  by  counsel  duly  thereunto  au- 
thorized by  her  Britannic  majesty's  representative  in  the 
United  States.  Calderon  Carlisle, 

Counsel  for  Sir  John  Thompson,  K.  C. 
M.  G.,  Her  Britannic  Majesty's  At- 
torney-General of  Canada. 

[Verification.     See  No.  706.] 

(i)  Taken  from  record  in  re  Cooper,  138  U.  S.,  404.  See  R.  S.,  Sec. 
688,  and  Foster's  Fed.  Prac,  Sees.  361,  362,  and  No.  705. 


No.  708. 

Rule  to  Show  Cause  why  Writ  of  Prohibition  should  not 

Issue  (i). 

In  the  Supreme  Court  of  the  United  States. 

E^  parte:  In  the  matter  of  J.  S.,  late  Collector^  No. , 

of  the  Customs  of  the  Port  of ,  Peti-  >      o  *   '     1 

tioner.  j  ^ 

On   consideration  of  the  petition  of  J.  S.,  late   collector 
of  customs  of  the  port  of  New  York, 

It  is  here  now  ordered  by  the  court  that  cause  be  shown 
by  the  judge  of  the  district  court  of  the  United  States  for 

the  southern  district  of before  this  court,  at  Washington, 

on  the day  of next,  at  12  o'clock  noon  of  that  day, 

or  as  soon  thereafter  as  counsel  can  be  heard,  why  a  writ 


674  ^'  S-  SUPREME   COURT. 

of  prohibition  should   not  be  granted   as   prayed   in    this 
petition. 

Dated . 

(i)  From  record  ex  parte  Fassett,  Collector,  142  U.  S.,  479- 


No.  709. 

Answer  in  the  Supreme  Court. 

Consult  form  of  Answer,  No.  176  et  seq. 


No.  710. 

Verification  of  a  Pleading  in  the  Supreme  Court. 
Consult  forms  Nos.  85,  133,  188,  585,  and  706. 


No.  711. 

Motion  to  Dismiss  for  Want  of  Jurisdiction. 

In  the  Supreme  Court  of  the  United  States. 

The  State  of ,  Plaintiff, 

vs. 

The  State  of ,  Defendant. 

Now  comes  the  defendant  and  moves  the  court  to  dismiss 
the  bill  herein  for  want  of  jurisdiction,  as  apparent  from  the 
bill: 

First.  Because  it  therein  appears  that  the  claim  relates 
to  an  antiquated  controversy  between  colonies,  previous  to 
the  formation  of  the  government. 

Second.  Because  there  is  no  legislative  provision  or  law 
in  force  to  direct  or  regulate  the  process,  forms  of  proceed- 
ing, judgment,  or  execution,  or  to  authorize  any  action  by 
the  court  in  the  premises. 

Third.  Because  the  nature  of  the  suit  is  political  in  its 
character,  brought  by  a  sovereign  for  the  restitution  of  sov- 
ereignty of  disputed  territory.  R.  X., 

Solicitor  for  Defendant. 


ORIGINAI^   JURISDICTION.  675 

No.  712. 

Demurrer  for  "Want  of  Jurisdiction, 

In  the  Supreme  Court  of  the  United  States. 

The  State  of ,  Plaintiff, 

vs. 

The  State  of ,  Defendant. 

Now  comes  the  defendant  in  this  cause  and  demurs  to  the 
bill  filed  herein,  and  asks  that  the  same  be  dismissed,  for  the 
following  reasons : 

First.  It  does  not  appear  from  the  bill  that  the  parties  be- 
fore the  court  are  such  as  to  give  the  court  jurisdiction  of  the 
same. 

Second.  It  does  not  appear  from  the  bill  that  the  matter  in 
question  or  controversy  is  of  such  a  judicial  nature  as  to  au- 
thorize the  court  to  take  cognizance  of  it. 

Third.  It  appears  from  the  bill  that  the  controversy  relates 
solely  to  the  jurisdiction  and  sovereignty  of  the  state  in  its 
political  capacity,  and  presents  no  question  of  private  rights 
of  persons  or  property  for  judicial  determination. 

R.  X., 
Solicitor  for  Defendant. 


No.  71 3. 

Plea. 

In  the  Supreme  Court  of  the  United  States. 
A.  B.,  Plaintiff, 

vs. 
C.  D.,  Defendant. 

The  said  C.  D.,  defendant,  by  R.  X.,  his  solicitor,  comes 
and  says  that  this  court  ought  not  to  take  further  cognizance 
of  this  suit,  because   the  plaintiff  herein  is  not  a  counsel  of 

,  at  the  city  of ,  as  stated  in  his  bill  of  complaint 

herein,  nor  was  he  at  the  time  of  the  filing  of  his  said  bill, 
and  this  he  is  ready  to  verify. 


676  U.  S.  SUPREME   COURT. 

\If  the  plea  is  of  another  bill  pending  ^  say:  "That  hereto- 
fore, and  before  the  said  plaintiflf  exhibited  his  bill  in  this 

honorable  court,  to  wit,  on  the day  of ,  1894,  the 

said  plaintiff  in  the  circuit  court  of  the  United  States  at 

,  in  the circuit,  for  the  same  matters  and  to  the 

same  effect,  and  for  like  cause  of  complaint  and  relief  as  in 
this  his  bill  herein,  and  to  which  bill  this  defendant  did  then 
and  there  put  in  an  answer,  and  said  bill  is  still  pending  in 
said  court  and  undetermined."] 

Wherefore  he  prays  judgment  if  the  court  here  will  take 
cognizance  of  or  entertain  this  action.  R.  X., 

Solicitor  for  Defendant. 

I,  R.  X.,  solicitor  for  the  defendant  in  this  suit,  hereby 
certify  that  in  my  opinion  the  foregoing  plea  to  the  bill  of 
complaint  filed  herein  is  well  founded  in  point  of  law. 

R.  X., 
Solicitor  for  Defendant. 

[  Verification^ 

No.  714. 
Orders  and  Decrees. 

For  forms  of  Orders  and  Decrees  in  the  Supreme  Court,. 
see  under  title  "  Appellate  Proceedings." 


MISCELLANEOUS. 


No.  715. 

Bill  in  Equity  to  Subject   Property  of  Absent   Defendant 
to  Pay  a  Judgment  (i). 

The  Circuit  Court  of  the  United  States, 
for  the District  of . 


In  Equity.     No. 


A. 

BO 

vs.     1 

C. 

D.  \ 

E. 

F. 

G. 

H.J 

To  the  Honorable  Judges  of  the  Circuit  Court  of  the  United 
States  within  and  for  the District  of : 

A.  B.,  of  ,  plaintiff  herein,  respectfully  shows  unto 

your  honors  that  at  the term,  1894,  of  this  court,  he 

recovered  a   judgment  at  law  in  cause  No. ,  for 

dollars,  and  costs  amounting  to dollars,  amounting  in 

the  aggregate  to dollars,  against  C.  D.,  which  said  judg- 
ment is  still  in  full  force  and  unreversed. 

And  your  orator  further  says   that  execution   was   duly 
issued  upon  said  judgment  to  the  marshal  of  said  district  on 

the day  of ,  1894,  and  levy  was  duly  made  upon 

the   personal   property  of   said   C.   D.,   and   only  the   sum 

of dollars  made  upon  said  writ  of  execution,  and  the 

same  was  returned  unsatisfied  on  the day  of ,  1894, 

leaving  unpaid  and  still  due  upon  said  judgment  the  sum 

of dollars,  with  interest. 

677 


678  MISCELI.ANEOUS. 

And  your  orator  further  says  that  he  is  informed  and  be- 
lieves that  the  said  C.  D.  has  fled  the  country,  and  that 
certain  property  of  his,  to  wit,  money  of  or  about  the  value 

of dollars,  sufficient  to  satisfy  the  judgment,  is  still  in 

the  possession  and  under  the  control  of  one  E.  F.,  but  which 
your  orator  is  unable  to  reach  by  process  of  law;  and  your 
orator  is  also  informed  that  one  G.  H.,  an  alien,  residing  in 

,  without  this  district  and  the  jurisdiction  of  this  court, 

claims  some  interest  or  rig'ht  to  the  money  aforesaid  now  in 
the  possession  of  said  E.  F,,  and  the  property  of  said  C.  D. 

Wherefore  your  orator  prays  that  C.  D.,  E.  F.,  and  G.  H. 
be  made  parties  defendant  herein,  and  that  process  issue  re- 
quiring them  to  appear  and  answer  this  bill  of  complaint; 
that  said  G.  H.  be  required  especially  to  answer  (but  not 
under  oath)  by  what  right  or  title  he  claims  the  money 
aforesaid,  and  to  set  forth  his  claims  in  this  suit ;  and  that 
E.  F.  be  required  especially  to  answer  how  much  money  be- 
longing to  said  C.  D.  he  has  now  in  his  possession,  and  what 
is  the  indebtedness  due  to  him  from  the  said  CD.,  and  that 
after  payment  of  all  lawful  and  equitable  prior  claims  the 
said  money  may  be  applied  to  the  judgment  recovered  by 
your  orator  against  said  C.  D.  until  further  order  of  this 
court,  and  for  such  other  and  further  relief  as  may  be 
proper,  just,  and  equitable.  A.  B., 

X.  &   X.,  Plaintiff. 

Solicitors  for  Plaintiff. 

{Verification^  as  in  No.  85.) 

( I )  As  to  proceedings  in  case  of  absent  defendant  in  a  federal  court, 
see  Desty's  Fed.  Proc,  Sec.  25,  and  cases  there  cited,  and  R.  S., 
Sec.  738. 


No.  716. 

Motion  for  Service  by  Publication  (i). 

[Caption^ 

Now  comes  A.  B.,  and  moves  this  honorable  court  for  an 
order  to  proceed  under  Section  738  of  the  Revised  Statutes 


MISCELIvANEOUS.  679 

of  the  United  States  to  obtain  service  upon  C.  D.  and  G.  H. 
by  publication,  on  the  ground  that  the  marshal  returned  the 
subpoena  issued  in  this  cause,  indorsed  "  The  defendants,  C. 
D.  and  G.  H.,  are  not  found  in  my  district,"  and  that  per- 
sonal service  is  not  practicable,  the  absent  defendants  being 
inhabitants  of  the  dominion  of  Canada  \or  as  may  be\. 

X.  &  X., 
Attorneys  for  Plaintiff. 

( 1 )  As  to  when  service  by  publication  is  allowed  in  federal  courts, 
see  Desty's  Fed.  Proc,  Sec.  25,  and  R.  S.,  Sec.  738. 


No.  717. 
Order  for  Service  by  Publication  (i). 

\Caption^ 

Upon  the  motion  of  X.  &  X.,  counsel  for  A,  B.,  and  it  ap- 
pearing to  the  court  that  the  defendants,  C.  D.  and  G.  H., 
are  not  inhabitants  of,  nor  are  found  within,  this  district,  nor 
have  voluntarily  entered  their  appearance  herein,  and  that 
personal  service  upon  the  said  defendants,  C.  D.  and  G.  H., 
is  not  practicable,  it  is  hereby  ordered  that  said  defendants, 
C.  D.  and  G.  H.,  appear,  plead,  answer,  or  demur  to  the  said 

bill  filed  by  the  plaintiff  herein,  by  the day  of , 

1894,  and  in  default  thereof  that  the  court  will  proceed  to 
the  hearing  and  adjudication  of  said  suit;  and  that  this 
order  be  published  in  a  newspaper  of  general  circulation, 
to  wit,  \name  the  paper\  once  a  week  for  six  consecutive 
weeks. 

(1)  See  Note  to  No.  715. 


No.  718. 

Notice  for  Publication. 

The  Circuit  Court  of  the  United  States  for  the District 

of .     A.  B.  vs.  C.  D.,  E.  F.,  and  G.  H.   Whereas,  proceed- 
ings have  been  instituted  by  the  plaintiff  to  subject  certain 


68o  MISCELLANEOUS. 

moneys  and  credits  iDelonging  to  C.  D„  in  the  possession  and 
under  the  control  of  E.  F.,  to  the  payment  of  a  judgment 
against  said  C.  D.,  as  set  forth  in  the  bill  filed  in  the  above 
cause  ;  and  in  pursuance  of  an  order  of  said  court  granted  in 
the  above-entitled  cause,  notice  is  hereby  given  to  C.  D.  and 
G.  H.,  defendants,  who  are  not  inhabitants  of  nor  are  found 
within  this  district,  that  they  appear,  plead,  answer,  or  demur 

to  the  bill  of  complaint  filed  by  the  plaintiff  herein,  by  the 

day  of ,  1894,  and  that  in  default  thereof,  the  court  will 

proceed  to  the  hearing  and  adjudication  of  said  suit. 
X.  &  X.,  A.  B., 

Solicitors  for  Plaintiff.  Plaintiff. 


No.  719. 

Decree  Subjecting  Absent  Defendant's  Property  to 
Payment  of  Judgment. 
[Caption.'] 

This  cause  came  on  to  be  heard  on  the day  of  ■ 


1894,  on  the  bill  of  complaint  and  testimony,  [or  as  may  be\ 
the  said  defendants  being  represented  by  counsel.  Upon  the 
hearing  of  the  case  the  court  thereupon  finds  that  all  of  the 
defendants  have  been  duly  notified  of  the  pendency  and  prayer 
of  the  bill,  and  have  failed  to  answer  the  same ;  and  the 
court  further  finds  from  the  testimony  that  the  defendant, 
E.  F.,  has  in  his  possession  and  belonging  to  C.  D.  a  large 
sum  of  money ;  that  the  said  plaintiff  is  entitled  to  have 
sufficient  of  the  said  money  applied  to  the  payment  of  the 
judgment  and  costs  fully  described  in  his  bill  in  this  cause, 
subject  to  any  claim  which  may  have  been  set  in  any  suit  in 
other  courts  prior  to  the  filing  of  the  bill  in  this  cause;  and 
that  there  is  now  due  to  the  said  plaintiff,  on  the  said  judg- 
ment and  costs,  the  sum  of dollars,  which,  with  interest 

dollars,  and  clerk's  additional  costs  in  said  cause,  to 

wit, dollars,  makes  a  total  of dollars  due  the  said 

plaintiff. 


MISCELLANEOUS.  68l 

It  is  therefore  ordered,  adjudged,  and  decreed  that  the 
said  defendant,  E.  F.,  pay  into  the  registry  of  this  court  the 

said  sum  of dollars,  and  in  addition  thereto  the  costs 

in  this  cause,  taxed  at dollars,  the  sum  so  paid  to  be 

credited  on  any  sum  which  may  be  found  due  from  him  to 
the  said  C.  D.,  or  to  the  defendant,  G.  H.,  and  that  the  said 
C.  D.  and  G.  H.  be  forever  enjoined  from  collecting  the 
amount  so  paid  by  said  E.  F.  from  said  E.  F.,  or  from  re- 
fusing to  credit  the  said  sum  upon  any  amount  which  may 
be  found  due  from  the  said  E.  F.  to  the  said  C.  D.,  as  afore- 
said, provided,  however,  that  this  decree  shall  not  interfere 
with  the  payment  to  any  other  creditor  of  the  said  C.  D., 
who  has  brought  suit  to  subject  the  same,  prior  to  the  filing 
of  the  bill  in  this  cause. 


No.  720. 

Order  of  Distribution. 

\CapHon!\ 

On  motion  of  R.  X.,  counsel  for  the  plaintiflf,  and  it  ap- 
pearing to  the  court  that  in  accordance  with  a  decree  here- 
tofore entered,  the  defendant,  E.  F.,  has  paid  into  the  registry 

of  this  court  the  sum  of dollars  in  obedience  thereto, 

and  the  court  proceeding  to  distribute  the  same,  orders  and 
directs  that  after  payment  of  the  following  sums,  to  wit  [set 

forth  the  items],  that  the  sum  of dollars  shall  be  paid  to 

the  plaintiff,  A.  B. 

And  it  is  further  ordered  that  the  sum  of dollars  be 

duly  credited  on  the  judgment  and  costs  in  the  case  of  A.  B. 

vs,  C.  D.,  No. ,  in  the  circuit  court  of  the  United  States 

for  the district  of ,  in  full  satisfaction  of  the  same. 


682  MISCEIvLANEOUS. 

No.  721. 

Judgment  in   Customs   Law   Case  (i). 

The  Circuit  Court  of  the  United  States 

for  the District  of . 

Jn  re  Application  of  A.  B., 


No. .     Judgment. 


Surveyor  of  Customs, 
in  re 
C.  D.,  Importer. 

This  cause,  coming  on  this day  of ,  1894,  to  be 

heard  upon  the  application  of  A.  B.,  surveyor  of  customs,  and 
the  return  of  the  evidence  and  facts  by  the  board  of  United 
States  general  appraisers,  and  also  upon  the  evidence  pro- 
duced on  the  part  of  the  United  States  and  on  the  part  of 
the  said  CD.,  importer,  and  the  court  hearing  the  argu- 
ments of  counsel  for  the  respective  parties,  and  being  fully 
advised  in  the  premises,  finds  that  the  classification  of  the 
article  in  controversy  herein  as  made  by  the  said  board  of 
United  States  general  appraisers  is  correct,  and  should  be 
sustained,  and  that  the  said  article  is  correctly  classified  as 

\state  what\  under  paragraph ,  schedule ,  of  the  act 

of  congress  passed  October  i,  1890,  entitled  "An  act  to  re- 
duce the  revenue  and  equalize  duties  on  imports,  and  for 
other  purposes,"  and  that  the  rate  of  duty  imposed  on 
said  article  is cents  per . 

It  is  therefore  ordered,  adjudged,  and  decreed  that  the  ap- 
plication of  A.  B.,  surveyor  of  customs,  be  and  hereby  is  dis- 
missed, and   that  the   said    C.  D.    have  and  recover  of  the 

United  States  the  sum  of dollars,  the  amount  of  duty 

paid  by  him  as  importer  in  excess  upon  said  importation  of 
said  article  involved  herein,  and  also  costs  in  his  behalf  ex- 
pended herein,  and  that  a  copy  of  this  judgment  be  certified 
to  the  attorney-general  of  the  United  States,  according  to 
law,  to  which  finding  the  United  States,  by  its  attorney,  J. 
H.,  excepts,  and  prays  that  the  exception  be  noted  of  record, 
which  is  accordingly  done.  G.  W., 

Circuit  Judge. 

(i)  For  form  of  Petition,  consult  No.  8. 


MISCELLANEOUS.  685 

No.  722. 

Petition  for  Appeal — Customs  Law  Case  (1); 

The  Circuit  Court  of  the  United  States,  for  the 

Circuit  and  District  of . 

No. . 

In  the  matter  of  the  application  of  the  A.  B.  Company  for 
the  review  of  the  question  of  law  and  fact  involved  in  the 
decision  of  the  board  of  general  appraisers,  dated ,  con- 
cerning merchandise  imported  by  said  A.  B.  Co. 

The  applicant,  the  A.  B.  Company,  applies  and  petitions 
the  court  for  an  appeal  from  the  decision  of  the  court  in  this 
proceeding,  on  its  application  herein,  sustaining  the  de- 
murrer to  the  statement  of  facts  contained  in  this  record, 
and  dismissing  its  application  herein,  and  affirming  and  ap- 
proving the  decision  of  the  board  of  general  appraisers  at 
New  York  and  of  the  surveyor  of  the  port  of . 

And  in  support  of  this  petition  for  appeal,  states  that 

many  thousands  of  dollars,  to  wit, dollars  of  duties   in 

excess  of  the  actual  amount  of  lawful  duties  demanded,  ex- 
acted, and  collected,  or  about  to  be  collected,  from  applicant 
herein,  and  many  thousands  of  dollars,  to  wit,  hundreds  of 
thousands  of  dollars  of  such  excessive  duties,  claimed,  col- 
lected, or  about  to  be  collected  from  other  parties,  depend 
upon  the  decision  on  this  application  ;  that  the  question  in- 
volved is  of  such  importance  as  to  require  a  review  of  the 
decision  of  the  court  herein  by  the  supreme  court  of  the 
United  States  and  the  United  States  circuit  court  of  appeals 
for  the circuit. 

And  said  applicant,  the  A.  B.  Company,  as  such  applicant, 
sets  out  its  assignment  of  errors  as  follows : 

1.  The  court  erred  in  sustaining  the  demurrer  of  the 
United  States. 

2.  The  court  erred  in  approving  and  affirming  the  deci- 
sion in  controversy  herein  of  the  surveyor  of  customs  of  the 
port  of ,  and  of  the  board  of  general  appraisers. 


684  MISCELLANEOUS. 

3.  The  court  erred  in  dismissing  the  said  application 
herein  for  review  of  said  decision  of  said  surveyor  and  board 
of  general  appraisers. 

4.  The  court  erred  in  deciding  that  the  customs  duty  im- 
posed by  the  laws  of  the  United  States  upon [describe 

rate  of  duty  imposed  by  collector^ 

And  thereupon  the  A.  B.  Company  prays  the  court  to 
allow  an  appeal  from  the  decisions  aforesaid  herein  to  the 
United  States  court  of  appeals  for  the  circuit,  and  ten- 
ders herewith  its  bond,  with  E.  F.  as  its  security,  that  the  ap- 
pellant shall  prosecute  its  appeal  to  eflFect,  and  answer  all 
damages  and  costs  if  it  fail  to  make  its  plea  good,  and  prays 
that  the  same  be  approved.               The  A.  B.  Company, 

R.  X.,  By  A.  B.,  President. 

Of  Counsel. 

(i)  Proceedings  under  Sec.  15  of  the  Act  of  June  10,  1890,  26  Stat, 
at  Lm  131- 


CLERK'S    BLANKS.* 


No.  723. 

Entry  (General    Form). 

The  Circuit  Court  of  the  United  States 
for  the District  of . 


vs.     V    No. 


This  cause  came  on  to  be heard  at  this  term,  and  was 

argued  by  counsel ;  and  thereupon,  upon  consideration  there- 
of, it  was  ordered,  adjudged,  and  decreed  as  follows,  viz. : 


No.  724. 

Certified  Copy  of  Entry. 

The  United  States  of  America, 
District  of ,  ss. 

At  a  stated  term  of  the court  of  the  United  States  o 

America,  within  and  for  the district  of ,  in  the ■ 

judicial  circuit  of  the  United  States  of  America,  begun  and 

had  in  the  court-rooms,  at  the  city  of ,  in  said  district, 

on  the  first  Tuesday  of  ,  being  the  day  of  that 

month,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  ninety ,  and  of  the  independence  of  the  United 

States  of  America,  one  hundred  and . 

Present,  the  Honorable . 

On  ,  the  day  of  ,   189 — ,  among  the  pro- 
ceedings had  were  the  following,  to  wit : 

*  Consult  the  preceding  forms  for  Writs,  Notices,  Subpoenas,  Citations,  etc. 

685 


686  clerk's  blanks. 

The  United  States  of  America, 
District  of ,  ss. 

I, clerk  of  the court  of  the  United  States,  within 

and  for  the  district  aforesaid,  do  hereby  certify  that  the  fore- 
going    is   truly  taken  and  correctly   copied  from  the 

journal  of  said  coiirt. 

In  testimony  whereof,  I  have  hereuiito  set  my  hand  and 

affixed  the  seal  of  said  court,  at  the  city  of ,  this 

day  of ,  189 — . 

,  Clerk. 


By ,  Deputy. 

No.  725. 

Certificate  of  Copy  of  Entry  Allowed  in  Chambers. 

The  United  States  of  America, 
District  of ,  ss. 


vs.     V    No. 


Be  it  remembered,  that  on  a  hearing  before  the  honorable 
-,  sitting  at   chambers  on  the day  of ,  189 — , 


the  following  order  was  made  and  signed,  and  ordered  to 
be  entered  upon  the  records  of  the  court  in  the  above  en- 
titled cause,  to  wit: 


The  United  States  of  America, 

District  of ,  ss. 

I, ,   clerk  of  the  circuit  court  of  the  United  States, 

within  and  for  the  district  aforesaid,  do  hereby  certify  that 

the  above  is  a  true  copy  of ,  entered  upon  the  chancery 

order  book  of  said  court  in  the  case  therein  entitled  ;  that  I 

have  compared  the  same  with  the  original  entry  of  said , 

and  it  is  a  true  transcript  therefrom  and  of  the  whole  thing. 


clerk's  blanks.  687 

Witness  my  official  signature  and  the  seal  of  said  court 

at ,  in  said  district,  this day  of ,  189 — ,  and  in 

the  year   of  the  independence  of  the   United   States 

of  America.  ,  Clerk. 

By ,  Deputy. 

No.  726. 

Certificate  for  Copy. 

The  United  States  of  America, 

District  of ,  ss. 

I, ,  clerk  of  the court  of  the  United  States,  with- 
in and  for  the  district  aforesaid,  do  hereby  certify  that . 


In  testimony  whereof,  I  have  hereunto  set  my  hand,  and 

affixed  the  seal  of  the  said  court,  at ,  this day  of 

,  18—.  , 

Clerk Court  of  the  United  States. 

By .  Deputy. 

No.  727. 

Certificate  as  to  OfHcial  Character  of  Clerk  by  a  Judge. 

The  United  States  of  America, 

District  of ,  ss. 

I, ,  judge  of  the  court  of  the   United   States, 

within  and  for  the  district  aforesaid,  the  same  being  a  court 
of  record,  within  and  for  the  district  aforesaid,  do    hereby 

certify  that is  clerk  of  said  court,  and  was  such  clerk  at 

the  time  of  making  and  subscribing  to  the  foregoing  certifi- 
cate   ,  and  that  the  attestation  of  said  clerk  is  in  due  form 

of  law  and  by  the  proper  officer. 

In  testimony  whereof,  I  do  hereby  subscribe  my  name  at 

, ,  this day  of ,  189 — . , 

Judge  of  the Court  of  the 

United  States  for  the 

District  of . 


688  clerk's  blanks. 

No.  728. 

Certificate  as  to  Official  Character  of  Judge  by  the 
Clerk  of  the  Court. 

The  United  States  of  America, 

District  of ,  ss. 

I,  ,  clerk  of  the  court  of   the  United  States, 

within  and  for  the  district  aforesaid,  do  hereby  certify  that 

,  whose  name  is  subscribed  to  the  foregoing  certificate, 

was,  at  the  time  of  subscribing  the  same,  judge  of  the 


court,  within  and  for  the  district  aforesaid,  duly  commissioned 
and  qualified,  and  that  full  faith  and  credit  are  due  to  all  his 
official  acts  as  such. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and 

affixed  the  seal  of  said  court  at ,  this  ■ day  of , 

189—.  , 

Clerk Court  of  the  United  States, 

By ,  Deputy. 

No.  729. 

Certificate  as  to  Searching  Record. 

The  United  States  of  America, 

District  of ,  ss. 

I, ,  clerk  of  the  circuit  court  of  the  United  States, 

within  and  for  the  district  aforesaid,  do  hereby  certify  that 
I  have  searched  the  records  of  said  court  and  find  no  judg- 
ments or  suits  pending  therein,  by  or  against . 

In  witness  whereof,  I    have    hereunto   set  my  hand  and 

affixed  the  seal  of  said  court  at ,  this day  of , 

189 — .  ,  Clerk. 

By ,  Deputy. 


ci^erk's  blanks.  689 

No.  730. 

Order  of  Court  to  Pay  Account. 

At  a  stated  term  of  the  circuit  court  of  the  United  States 

within  and  for  the judicial  circuit  and  the district 

of ,  begun  and  held  at  the  city  of ,  on  the  first 

Tuesday  of ,  being  the day  of  that  month,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and ,  and 

of  the  independence  of  the  United  States  of  America  the . 

Present,  the  Honorable ,  district  judge. 

Among  the  proceedings  had  were  the  following,  to  wit: 

,  18—. 

Whereas has  presented  to  this  court  an  account  for 

his   services   for   the  quarter,  18 — ,  and   in   presence 

of ,  Esq.,  United  States  attorney,  has  proved  on  oath 

to  the  satisfaction  of  the  court  that  the  services  therein 
charged  have  been  actually  and  necessarily  performed  as 
therein  stated ;  and  whereas  said  charges  appear  to  be  just 
and  according  to  law,  it  is  ordered  that  said  account,  amount- 
ing to dollars  and  -. cents  ($ )  be  and  the  same 

hereby  is  approved. 
District  of ,  ss. 

I, ,  clerk  of  said  court,  do  hereby  certify  that  the  fore- 
going is  a  true  copy  of  an  order  entered  upon  the  journal  of 
said  court. 

Witness  my  official  signature  and  the  seal  of  said  court, 

at ,  this day  of ,  189 — . 

,  Clerk. 

By ,  Deputy  Clerk. 


690 


clerk's  blanks. 

No.  731. 

Schedule  No.  i. 

The  District  [or,  Circuit]  Court 
for  the District  of . 


For  attendance  on  court  while  in  ses- 
sion on  the  following  days,  to  wit : 

days, 
days, 
days. 
Travel  from  Cincinnati  (residence  of 
clerk)  to   Columbus,   the  place  of 
holding  court  for  the  eastern  divi- 
sion, and  return,  —  trips,  each  trip 

240  miles,  at  5c.  per  mile 

For  miscellaneous   fees,  for   services 
rendered,  as  follows : 
Making  entries  on  journal — 
Opening  and  adjournment  of  court, 

days, folios,  each  folio,  .15 

Order  for  grand  jury, folios, 

each  folio, 15 

Empanelment  of  grand  jury, 

folios,  each  folio, 15 

Reports  of  grand  jury,  folios, 

each  folio, 15 

Approving  appointment  of  bailiffs, 

folios,  each  folio 15 

Appointment  U.  S.  commissioners, 

folios,  each  folio, 15 

Excusing  jurors,  folios,  each 

folio,      15 

Ordering  rule  to  show  cause  to  is- 
sue,   folios,  each  folio 15 

Ordering  rule  to  show  discharged, 

folios,  each  folio 15 

Ordering  attachment  to  issue. 


folios,  each  folio 15 

Ordering    attachment  discharged, 

folios,  each  folio, 15 

Entering  sentence  for  contempt  of 

court, folios,  each  folio,    .    .  .15 

Entering  approval  of accounts 

of  district  attorney,  folios, 

each  folio, 15 

Entering  approval  of accounts 

of  marshal, folios,  each  folio,  .15 

Entering  approval  of accounts 

of  clerk, folios,  each  folio,  .  .15 


clerk's  blanks. 


691 


Entering  approval  of accounts 

of   U.    S.    commissioners,   

folios,  each  folio, 15 

Order   to   pay   grand  jurors,  

folios,  each  folio, 15 

Order   to    pay   petit   jurors,   

folios,  each  folio, 15 

Order  to  pay  grand  jury  witnesses, 
folios,  each  folio, 15 

Application  for  appointment  of 
chief  supervisor  of  elections, 
folios,  each  folio, 15 

Appointing  chief  supervisor  of 
election, folios,  each  folio,  .  .15 

Resignation  of  chief  supervisor, 
folios,  each  folio, 15 

Approving  appointment  of  super- 
visors of   election,   folios, 

each  folio, 15 

Making  certified  copies  of  journal 
entries,  to  wit : 

Allowance  to  district  attorney, 

folios,  each  folio,  loc,  ctfic.  and 
seal, 35 

Approval  of  accounts  of  district  at- 
torney,      folios,   each    folio, 

IOC,  ctfic.  and  seal, 35 

Approval  of  accoiints  of  marshal, 

folios,  each  folio,  loc,  ctfic. 

and  seal, 35 

Approval  of  accounts  of  clerk, 

folios,  each  folio,  loc,  ctfic.  and 
seal, 35 

Approval  of  accounts  of  U.  S.  com- 
missioners,   folios,  each  folio, 

IOC.,  ctfic.  and  seal, 35 

Order  to  pay  grand   jurors, 

folios,  each  folio, 10 

Order   to    pay   petit    jurors,   

folios,  each  folio, 10 

Order  to  pay  grand  jury  witnesses, 

folios,  each  folio, 10 

Other  miscellaneous  fees : 

Filing applications  for  grand 

jury, each,  .10 

Filing precipes  for  grand  jury 

witnesses each,  .10 

Issuing  subpoenas  for  grand 

jury  witnesses each,  25 

Filing  and  entering  return  on 

subpoenas   for  grand   jury  wit- 
nesses,     each,  .25 


69a 


ci^erk's  blanks. 


Swearing jurors  to  attendance 

and  travel, each,  .10 

Swearing grand  jury  witnesses 

to  attendance  and  travel,  .  each,  .10 

Swearing bailiffs,   .    .    .  each,  .10 

Filing  transcripts  of   U.  S. 

commissioners,    .....  each,  .10 

Filing other  papers  of  U.  S. 

commissioners each,  .10 

Filing monthly  reports  of  U. 

S.  commissioners,    ....  each,  .10 

Issuing  — ' —  commissions  to  super- 
visors of  elections,    .    .    .  each,  i.oo 

Filing  duplicate  accounts  of 

U.  S.  officers, each,  .10 

Issuing  rule  to  show  cause,  each,  i.oo 

Filing  and  entering  return  there- 
on,    each, .25 

Issuing  order  of  attachment,  each,  i.oo 

Filing  and  entering  return  there- 
on,    each, .25 

Total  amount  of  schedule. 


clerk's  blanks. 


693 


No.  732. 

Schedule  No.  2. — Civil  Cases. 

The  District  [or,  Circuit]  Court 
for  the District  of . 


For  fees  in  the  following  cases,  in 
which  the  United  States  is  plaintiff: 

Filing  petition, 10 

Entering  rule  day  for  answer,   .    .  .30 

Filing  precipe  for  summons 10 

Issuing  summons, i.oo 

Filing  and  entering  return  on  sum- 
mons,            •  -25 

Filing stipulations,   .    ,   each,  .10 

Filing replications,   .    .   each,  .10 

Filing demurrers,  .   .    .  each,  .10 

Filing motions,  ....  each,  .10 

Filing affidavits,    .   .   .    each,  .10 

Filing  and   opening  deposi- 
tions,    each, .25 

Filing precipes  for  witnesses, 

each,  .10 
Issuing  subpoenas    for    wit- 
nesses,    each,  .25 

Filing  and  entering  return  on 

subpoenas, each,  .25 

Swearing witnesses  to  testify, 

each,  .10 
Swearing witnesses  to  attend- 
ance and  travel, each,  .10 

Entering  order  to  pay  witnesses,  . 

each,  .15 
Copying  order  to  pay  witnesses  to 

marshal each,  .10 

Entering on  journal, folios, 

each, 15 

Entering on  journal, folios, 

each, 15 

Entering on  journal, folios, 

each, 15 

Entering  judgment, folios,  each.  15 

Dockets,  indexes,  etc., 

Commission  on received  and  paid 

out,  at  I  percent, 

Final  record, folios,  each,    .    .    .15 


694 


clerk's  bi^anks. 


No.  733. 

Schedule  No.  3. —  Criminal  Cases. 

The  District  \or,  Circuit]  Court 

for  the District  of . 


Filing  indictment, 10 

Filing  precipe  for  capias, 10 

Issuing  capias, i.oo 

Filing  and  entering  return  on  ca- 
pias,   25 

Entering  arrangement  and  plea, 

folios, each  folio,  .15 

Taking  recognizance, folios,  . 

each  folio, 25 

Filing  written  recognizance,  .each,  .10 

Swearing  sureties, each,  .10 

Certificate  and  seal  thereto,  .  each,  .35 
Issuing  temporary  mittimus,   .    .    i.oo 
Filing  and  entering  return  on  tem- 
porary mittimus, 25 

Filing  affidavit  under  crimes  act,  .  .10 
Entering  order  to  subpoena  defend- 
ant's witnesses, folios,  each,  .15 

Filing precipes  for  witnesses, 

each, 
Issuing  subpoenas    for   wit- 


nesses,      each. 

Filing  and  entering  return  on 

subpoenas, each, 

Entering  trial  and  verdict, fol- 
ios,      each. 

Swearing witnesses  to  testify, 


Swearing 


each, 
witnesses  to  attend- 
ance and  travel, each,  , 

Entering  orders   to  pay  wit- 
nesses,    folios,  ....  each,  , 

Copying  orders  to  pay witness- 
es for  marshal,  

Filing motions. 


25 


25 


15 


10 


15 


folios,  each,  .10 
.    .    .  each,  .10 

Filing  verdict, 10 

Entering  sentence, folios,  each  ,15 

Issuing  final  commitment,   .    .    .1.00 
Filing  and  entering  return  on  final 

commitment, 25 

Entering  order  of  distribution, 

folios, each,  .15 

Commission  on  $ ,  received  and 

paid  out,  at  i  percent, 

Dockets,  indexes,  etc., 
Entering  final  record. 


folios, 
each. 


15I 


clerk's  blanks.  695 

No.  734. 

Quarterly  Statement  of  Clerk. 

Account  of ,  Clerk, 

For  quarter  ending ,  189 — . 

The  United  States,  Dr. 

To ,  Clerk  of  the  Circuit  and   District  Courts  of  the 

United  States  within  and  for  the District  of . 

For  compensation  and  fees  for  services  rendered  the  United 

States  in  said  courts  during  the  quarter  ending ,  18 — , 

as  follows,  to  wit : 

DISTRICT   COURT(l). 

Schedule  "A,"  per  diems  and  miscellaneous  fees,    $ . 

Schedule  "  B,"  cases $ . 

CIRCUIT  COURT  (l). 

Schedule  No.  i,  per  diems  and  miscellaneous  fees,    $ . 

Schedule  No.  2,  civil  cases $ . 

Schedule  No.  3,  criminal  cases, $ 

The  United  States  of  America, 
District  of ,  ss. 

I, ,  clerk  of  the  said  courts,  do  solemnly  swear  that 

the  services  charged  in  the  foregoing  account  have  been 
actually  and  necessarily  performed  as  therein  stated,  and  that 
all  the  items  stated  in  said  schedules  are  correct  and  legal, 
and  the  amounts  justly  due  me,  as  I  verily  believe,  so  help 
me  God.  . 

Subscribed  and  sworn  to  before  me  this day  of , 

189—.  , 

U.  S.  Commissioner. 

(i)  In  case  the  Clerk  of  the  District  and  Circuit  Courts  is  not  the 
same  person,  only  the  form  for  the  court  of  which  he  is  clerk  should 
be  used. 


696  clerk's  blanks. 

No.  735. 

Order  Approving  Clerk's   Account. 

At  a  stated  term  of  the  circuit  court  of  the  United  States, 

within  and  for  the judicial  circuit,  and  the district 

of  ,  begun   and  held  at  the  city  of on   the  first 

Tuesday  of ,  being  the day  of  that  month,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and ,  and 

of  the  independence  of  the  United  States  of  America  the . 

Present,  the  Honorable  ,  circuit  [or,  district]  judge. 

Among  the  proceedings  had  were  the  following,  to  wit : 

,189—. 

Whereas, ,  clerk,  has  presented  to  this  court  an  ac- 
count for   his   services  for  the  quarter,  18 — ,  and   in 

presence   of ,  Esq.,  United   States  attorney,  has  proved 

on  oath,  to  the  satisfaction  of  the  court,  that  the  services 
therein  charged  have  been  actually  and  necessarily  performed 
as  therein  stated,  and  that  per  diem  compensation  has  only 
been  charged  for  days  when  business  was  actually  transacted 
in  court ;  and  whereas  said  charges  appear  to  be  just  and 
according  to  law,  it  is  ordered  that  said  account,  amounting 

to  '  dollars   and    cents  {$ )  be  and  the  same 

hereby  is  approved. 


The  United  States  of  America, 

District  of ,  ss. 

I, ,  clerk  of  said  court,  do  hereby  certify  that  the  fore- 
going is  a  true  copy  of  an  order  entered  upon  the  journal  of 
said  court. 

Witness  my  oflBcial  signature  and  the  seal  of  said 

court,    at  ,  ,  this day  of , 

189-.  ,  Clerk, 

!  By ,  Deputy. 


clerk's  blanks.  697 

No.  736. 

Oath  of  Office. 

The  United  States  of  America, 

District  of ,  ss. 

I  do  solemnly  swear  [or,  affirm]  that  to  the  best  of  my 
knowledge  and  ability  I  will  support  and  defend  the  con- 
stitution of  the  United  States  against  all  enemies,  foreign  and 
domestic  ;  that  I  will  bear  true  faith  and  allegiance  to  the 
same  ;  that  I  take  this  obligation  freely,  without  any  mental 
reservation  or  purpose  of  evasion  ;  and  that  I  will  well  and 
faithfully  discharge  the  office  on  which  I  am  about  to  enter. 

And  I  do  further  solemnly that  I  will  faithfully  execute 

all  lawful  precepts  directed  to  the  marshal  of  the dis- 
trict of ,  under  the  authority  of  the  United  States,  and 

true  returns  make,  and  in  all  things  well  and  truly,  and  with- 
out malice  or  partiality,  perform  the  duties  of  the  office  of 
deputy  marshal  of  the district  of ,  during  my  con- 
tinuance in  said  office,  and  take  only  my  lawful  fees.  So 
help  me  God.  . 

Sworn  and  subscribed  before  me  this  day  of , 

189—, ,  . 


No.  737. 

Designation  to  Hold  Circuit  and  District  Courts. 

The  United  States  of  America, 

Judicial  Circuit,  ss. 

To  the  Hon. ,  Judge  of  the  District  Court  of  the  United 

States  for  the District  of . 

Whereas,  in  my  judgment,  the  public  interest  so  requires, 
you  are,  pursuant  to  Section  596  of  the  Revised  Statutes, 

hereby  designated  and  appointed  to  hold  the term  of  the 

circuit  and  district  courts  for  the district  of at  the 

city  of ,  in  place  or  in  aid  of  the  proper  district  judge  of 


698  clerk's  blanks. 

such  district,  and  to  discharge  all  the  judicial  duties  of  such 

judge  from  the  day  of to  the day  of , 

189-,  , 


1 89-.  Circuit  Judge. 


No.  738. 

Summons  for  Jurors. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the   United  States  of  America  to  the  Mar- 
shal of  the District  of ,  Greeting: 

We  command  you  to  summon,  without  delay,  \space  for 

names],  to  be  and  appear  before  our court  of  the  United 

States,  within  and  for  the  district  aforesaid,  at  the  court-rooms 

in  the  city  of ,  on ,  the day  of ,  189-,  at 

o'clock M.,  then  and  there  to  serve  as jurors  for 

and  during  the term,  189-,  of  said  court,  and  not  depart 

the  court  without  the  leave  thereof. 

Hereof  fail  not,  and  have  then  and  there  this  writ,  with 
your  proceedings  thereon. 

Witness,  the  Honorable  Melville  W.  Fuller,  Chief 

Justice  of  the  United  States,  this day  of 

1 89-,  and  in  the year  of  the  inde- 
pendence of  the  United  States  of  America. 

Attest:  , 

Clerk Court  of  the  United  States, 

By ,  Deputy. 

No.  739. 

Report  of  Committee  on  Application  for  Admission  to  Bar. 

The  United  States  of  America, 
District  of ,  ss. 


We,  the  committee  appointed  to  examine  ,  esquire, 

of  ,    an  applicant  for  admission  to  the  bar,  have  the 

honor  to  make  the  following  report. 


clerk's  blanks.  699 

We  find  the  applicant  to  be  a  member  of  the  bar  of  the 

several  courts  of  the  state  of ,  in  good  standing,  of  good 

moral  character,  and  qualified  to  practice  in  the  courts  of  the 
United  States  as  an  attorney  and  counselor  at  law,  solicitor 
in  chancery,  and  proctor  and  advocate  in  admiralty,  and  rec- 
ommend his  admission  accordingly.  , 


Committee. 


No.   740. 

Certificate  of  Admission  to  the  Bar. 


The  United  States  of  America, 

Circuit  and 

District  of ,  ss. 


Be  it  known,  that  ,  Esq.,  has  been  duly  examined^ 

and  regularly  admitted  to  practice  as  a  solicitor,  attorney,  and 
counselor  at  law,  and  proctor  and  advocate  in  admiralty,  in 

and  for  the circuit  and district  of ,  at  the  term 

of ,  begun  and  holden  at on  the day  of , 

in  the  year  of  our  L/ord  one  thousand  eight  hundred  and , 

and  is  hereby  authorized  to  appear  as  such,  according  to  the 
rules  and  practice  of  said  courts,  the  laws  of  the  United 
States  and  the  state  of . 

In  testimony  whereof,  I  have  hereunto  set  my  name  and 

afiixed  the  seal  of  the  said  court,   at  the  city  of ,  this 

day    of ,   1 89-,  and  of  the  independence  of  the 

United  States  of  America  the . 


Clerk  of  the  Circuit  Court, 
for  the district  of 


700  clerk's  blanks. 

No.  741. 

United  States  Commissioner's  Certificate. 

The  United  States  of  America, 
Circuit  Court, 


District  of ,  ss. 


Be  it  known,  that  ,  Esq,  has  been  duly  appointed 

and  commissioned  as  a  United  States  commissioner  in  and 

for  the circuit,  and district  of ,  at  the  term  of 

,  begun  and  holden  at on  the day  of ,  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety- 
.  And  he  is  hereby  authorized  to  take  acknowledg- 
ments of  bail  and  affidavits,  and  to  take  depositions  of  wit- 
nesses, and  to  do  and  perform  all  other  acts  and  duties, 
according  to  the  rules  and  practice  of  said  courts,  the  laws 
of  the  United  States  and  the  state  of . 

In  testimony  whereof,  I  have  hereunto  set  my  name  and 

affixed  the  seal  of  the  said  court,  at  the  city  of ,  this 

day   of ,  1 89-,  and  of  the   independence   of  the 

United  States  the .  ,  Clerk. 

By ,  Deputy. 

No.  742. 

Oath  of  Expenses  of  Witness  on  Behalf  of  the 
United  States. 

The  United  States  of  America,  Term,  189-. 

District  of . 

The  United  States^ 

vs.  V Court. 

being  duly  sworn,  says  that  he  is ;  that  he  has 


attended  as  a  witness  onj  behalf  of  the  United  States  in  the 
above-entitled  cause,  and  has  been  discharged  ;  that  as  such 
witness  he  has  incurred  and  paid  the  following  necessary  ex- 
penses, to  wit :    . 

Subsistence  en  route, . 

Subsistence  at . 


clerk's  blanks.  701 

That  he  has  not  received,  and  is  not  entitled  by  the  regu- 
lations of  the  bureau  or  department  in  whose  service  he  is 
employed  to  claim  or  receive,  any  allowance  whatever  for  the 
above  expenses;  that  the  same  are  due  and  wholly  unpaid; 
that  he  has  not  charged,  and  does  not  intend  to  charge,  the 
same,  or  any  part  thereof,  against  any  other  fund,  department, 
or  officer  of  the  United  States ;  and  further  says  not. 


Subscribed  and  sworn  to  before  me  this day  of 

189-.  ■  , 

Clerk Court. 


No.  743. 

Statement  of  Court  Funds  (i). 

The Court  of  the  United  States, 

District  of . 


, ,  189-. 

Sir :     I  have  the  honor  to  report  moneys  in  the  custody  of 

this  court  at  the   close  of  the   week  ending ,  189-,   as 

follows : 

With  Assistant  Treasurer  U.  S.  at , ,      .      $ 

With National  Bank  of , ,     .     .     .        

With National  Bank  of , ,     .     .     .         

Held  otherwise,     .      .     . 


-,  Clerk. 


The  Treasurer  of  the  United  States. 

Note — This  statement  should  be  made  and  forwarded  to  the  Treas- 
urer of  the  United  States  at  the  close  of  business  on  Saturday  of  each 
week. 


702  ci<erk's  blanks. 

No.  744. 

Receipt  to  Clerk  for   Money  Paid  Out. 

Original  (i). 

Clerk's  Office  of  the  United  States Court, 

District  of . 

I .  , ,  1 89-. 

Received  of ,  clerk  of  the  United  States court, 

the  sum  of doUari,  on  account  of ,  during  the  six 

months  ending ,  18-. 

(i)  Have  a  duplicate  like  original. 


vs.      > 


No.  745. 

Receipt  by  Clerk  for  Money  Received. 

Clerk's  Office, 


vs.     >  Court, District  of 


Doc. .  No. 


-,  189-. 


Received  of , dollars,  being ,  which  amount 

is  also  receipted  on  docket. 

,  Clerk.. 

,  Deputy. 


NATURALIZATION   OF    ALIENS.  703 


NATURALIZATION   OF   ALIENS. 

No.  746. 

Naturalization.    (^Declaration  of  Alien  under  Eighteen 

Years.) 

To  the  Honorable  the  District  Court  of  the  United  States 
for  the District  of . 

Your  petitioner,  A.  B.,  respectfully  represents  that  he  is  a 
native  of  Great  Britain,  and  came  from  thence  to  the  city  of 
Cincinnati,  in  the  United  States  of  America,  in  the  year  1889, 
and  that  he  has  continued  to  reside  in  the  United  States,  and 
lias  resided  one  year,  at  least,  in  the  State  of  Ohio,  where  he 
now  resides  ;  that  he  came  to  the  United  States  at  or  about 
the  age  of  seventeen  years ;  that  it  has  been  his  intention 
since  his  said  arrival  to  become  a  citizen  of  the  United 
States  ;    that  he  is  now  twenty-two  years  of  age. 

A.  B. 

Sworn  to  and  subscribed  before  me  this  ninth  day  of  Jan- 
uary, 1894.  B.  R., 

Clerk  of  said  Court. 


The  District  Court  of  the  United  States, 

for  the District  of ,  ss. 

This  day  appeared  in  open  court,  C.  D.,  a  citizen  of  the 
United  States,  and,  being  duly  sworn,  says  that  A.  B.,  the 
foregoing  petitioner,  has  resided  more  than  five  years  next 
preceding  this  his  application  to  be  admitted  to  citizenship 
within  the  United  States,  and  more  than  one  year  in  the 
state  of  Ohio ;    that  during  that  time  he  has  behaved  as  a 


704  NATURALIZATION   OF  ALIENS. 

man  of  good  moral  character,  attached  to  the  principles  of  the 
constitution  of  the  United  States,  and  well  disposed  to  the 
good  order  and  happiness  of  the  same.  C.  D. 

Sworn  to  and  subscribed  before  me  this  ninth  day  of  Jan- 
uary, 1894.  B.  R., 

[Seal.']  Clerk  of  said  Court. 


No.  747. 

Certificate  of  Naturalization  of  an  Alien  under  Eighteen 

Years. 

The  United  States  of  America. 
The  President  of  the  United  States  of  America  to  All  who 
shall  see  these  Presents,  Greeting: 

Know  ye,  that  on  the  9th  day  of  March,  anno  Domini 
1894,  at  a  term  of  the  district  court  of  the  United  States  for 
the  southern  district  of  Ohio,  personally  came  A.  B.,  a 
native  of  Great  Britain,  who  proved  to  the  satisfaction  of 
the  court  that  he  came  to  the  United  States  before  arriving 
at  the  age  of  eighteen,  and  has  resided  therein  continuously 
for  more  than  five  years,  and  that  since  his  arrival  it  has 
been  his  intention  to  be  naturalized  and  become  a  citizen 
of  the  United  States;  and  also  proved  to  the  satisfaction 
of  the  court  that  he  has  behaved  as  a  man  of  good  moral 
character,  attached  to  the  principles  of  the  constitution 
of  the  United  States,  and  well  disposed  to  the  good  order 
and  happiness  of  the  same.  And  having  fully  complied 
with  the  laws  of  the  United  States  in  relation  to  the  natu- 
ralization of  aliens,  the  said  A.  B.,  on  being  admitted  by  the 
court,  took  the  oath  to  support  the  constitution  of  the  United 
States  of  America,  and  to  absolutely  and  entirely  renounce 
and  abjure  all  allegiance  and  fidelity  to  every  foreign  prince, 
potentate,  state,  or  sovereignty  whatsoever,  and  particularly 
to  Great  Britain  and  Ireland,  whose  subject  he  was. 

This  is,  therefore,  to  certify  that  the  said  A.  B.  is  a  citizen 
of  the  United  States. 


NATURALIZATION   OF   AI^IENS.  705 

In  testimony  whereof,  I  have  hereunto  subscribed  my 
name  officially,  and  affixed  the  seal  of  said  district  court,  at 
the  city  of  Cincinnati,  this  9th  day  of  March,  1894,  and  in 
the  ii8th  year  of  the  independence  of  the  United  States 
of  America. 

[Seal.]  B.  R., 

Clerk  of  said  Court. 


No.  748. 

Affidavit  for  First  Papers — Naturalization,  Declaration, 
and  Oath  of  Allegiance. 

The  United  States  of  America, 
District  of . 

The  declaration  of  A.  B.,  a  native  of  Great  Britain,  aged 
about  thirty-five  years,  bearing  allegiance  to  Great  Britain, 
[or  as  may  de],  who  came  from  thence  to  the  City  of  New 
York,  in  the  United  States  of  America,  in  the  year  1889. 

I  do  solemnly  swear  that  it  is  bona  fide  my  intention  to 
become  a  citizen  of  the  United  States  of  America,  and  to  ab- 
solutely and  entirely  renounce  and  abjure  all  allegiance  and 
fidelity  to  every  foreign  prince,  potentate,  state,  or  sover- 
eignty whatsoever,  and  particularly  to  the  Queen  of  Great 
Britain  and  Ireland  [or  as  may  be\  whose  subject  I  am,  ac- 
cording to  the  several  acts  of  congress  in  such  case  made  and 
provided,  so  help  me  God. 

A.  B. 

Sworn  to  before  me  this  ninth  day  of  March,  1891. 

[Seal.]  B.  R., 

Clerk  of  said  Court. 


706  NATURALIZATION   OF  ALIENS. 

No.  749. 

First  Papers — Declaration  of  Intention. 

The  United  States  of  America. 
The  President  of  the  United  States  of  America  to  All  who 
shall  see  these  Presents,  Greeting: 

Know  ye,  that  on  the  ninth  day  of  March,  anno  Domini 
1 89 1,  at  a  term  of  the  district  court  of  the  United  States  for 
the  southern  district  of  Ohio,  comes  A.  B.,  a  native  of  Great 
Britain  [or  as  may  be\  aged  about  thirty  years,  bearing  alle- 
giance to  Queen  Victoria  \or  as  may  be\  who  came  from 
thence  to  New  York,  in  the  United  States  of  America,  in  the 
year  1889,  and  who  intends  to  reside  within  the  jurisdiction 
and  under  the  government  of  the  United  States,  and  makes 
report  of  himself  for  naturalization,  and  declares  on  oath  that 
it  is  bona  fide  his  intention  to  become  a  citizen  of  the  United 
States  of  America,  and  to  absolutely  and  entirely  renounce 
and  abjure  all  allegiance  and  fidelity  to  every  foreign  prince, 
potentate,  state  or  sovereignty  whatsoever,  and  particularly 
to  the  Queen  of  Great  Britain  and  Ireland,  whose  subject 
he  is,  according  to  the  several  acts  of  congress  in  such  case 
made  and  provided. 

In  testimony  whereof,  I  have  hereunto  subscribed  my 
name  officially,  and  afiixed  the  seal  of  said  district  court  at 
the  city  of  Cincinnati,  this  ninth  day  of  March,  1891,  and  in 
the  one  hundred  and  fifteenth  year  of  the  independence  of 
the  United  States  of  America. 

B.  R., 
Clerk  of  said  Court. 


NATURALIZATION   OF   ALIENS.  707 

No.  750. 

Affidavit  for  Certificate  of  Naturalization. 

To  the  Honorable  the  District  Court  of  the  United  States 
for  the  Southern  District  of  Ohio. 

Your  petitioner,  A.  B.,  respectfully  represents  that  he  is  a 
native  of  Great  Britain  [or  as  may  be\^  and  came  from  thence 
to  the  city  of  New  York,  in  the  United  States  of  America,  in 
the  year  1889,  and  that  he  has  continued  to  reside  in  the 
United  States,  and  has  resided  one  year  at  least  in  the  state 
of  Ohio,  where  he  now  resides;  that  he  filed  his  declara- 
tion of  intention  to  become  a  citizen  of  the  United  States  in 

the  \71ame  of  court\^  on  the day  of ,  the  evidence 

which,  under  the  seal  of  said  court,  is  herewith  presented  to 
your  honorable  court,  and  that  he  desires  to  become  a  citizen 
of  the  United  States.  A.  B. 

Sworn  to  and  subscribed  before  me  this  12th  day  of  June, 
1894.  B.  R., 

\Seal^  Clerk  of  said  Court. 


The  District  Court  of  the  United  States, 

for  the  Southern  District  of  Ohio,  ss. 

This  day  appeared  in  open  court  C.  D.,  a  citizen  of  the 
United  States,  and,  after  being  duly  sworn,  says  that  A.  B., 
the  foregoing  petitioner,  has  resided  more  than  five  years 
next  preceding  this  his  application  to  be  admitted  to  citizen- 
ship within  the  United  States,  and  more  than  one  year  in 
the  state  of  Ohio;  that  during  that  time  he  has  behaved  as 
a  man  of  good  moral  character,  attached  to  the  principles  of 
the  constitution  of  the  United  States,  and  well  disposed  to 
the  good  order  and  happiness  of  the  same,  C.  D. 

Sworn  to  and  subscribed  before  me  this  12th  day  of  June, 
1894.  B.  R., 

[►S^fl/.]  Clerk  of  said  Court. 


708  NATURALIZATION   OF  ALIENS. 

No.  751. 

Certificate  of  Naturalization.     (Final  Papers.) 

The  United  States  of  America. 
The  President  of  the  United  States  of  America  to  All  who 
shall  see  these  Presents,  Greeting : 
Know  ye  that  on  the  12th  day  of  June,  anno  Domini  1894, 
at  a  term  of  the  district  court  of  the  United  States  for  the 
southern  district  of  Ohio,  personally  came  A.  B.,  a  native  of 
Great  Britain,  who  produced  a  certificate  of  his  intention  to 
be  naturalized  and  become  a  citizen  of  the  United  States,  and 
also  proved  to  the  satisfaction  of  the  court  that  he  has  be- 
haved as  a  man  of  good  moral  character,  attached  to  the 
principles  of  the  constitution  of  the  United  States,  and  well 
disposed  to  the  good  order  and  happiness  of  the  same.  And 
having  fully  complied  with  the  laws  of  the  United  States  in 
relation  to  the  naturalization  of  aliens,  the  said  A.  B,,  on 
being  admitted  by  the  court,  took  the  oath  to  support  the 
constitution  of  the  United  States  of  America,  and  to  abso- 
lutely and  entirely  renounce  and  abjure  all  allegiance  and 
fidelity  to  every  foreign  prince,  potentate,  state,  or  sover- 
eignty whatsoever,  and  particularly  to  the  Queen  of  Great 
Britain  and  Ireland,  whose  subject  he  was. 

This  is,  therefore,  to  certify  that  the  said  A.  B.  is  admitted 
a  citizen  of  the  United  States. 

In  testimony  whereof,  I  have  hereunto  subscribed 
my  name  officially,  and  affixed  the  seal  of  said 
district  court  at  the  city  of  Cincinnati,  this  12th 
day  of  June,  1894,  and  in  the  11 8th  year  of  the 
independence  of  the  United  States  of  America. 
[Seal.]  B.  R., 

Clerk  of  said  Court. 


MARSHAL'S  BLANKS. 


To 


No.  752. 

Notice  to  Appear  as  Witness  (i). 


By  virtue  of  a   subpoena,  issued  out  of  the  district  [or, 

circuit]  court  of  the  United  States,  for  the district  of 

,  and  herewith  shown  unto  you,  you  are  required  to  be 

and  appear  before  the  said  court,  at ,  on ,  the 


day  of 189-,  on  behalf  of  the  United  States,  and  not 

to  depart  said  court  without  leave.     If  you  fail  to  obey  such 
subpoena,  you  may  be  fined  and  imprisoned,  as  the  court 

shall  direct.  , 

United  States  Marshal 
for  the  District  of . 


Deputy. 


Take  notice, — ^You  will  (if  you  appear  at  the  place  ap- 
pointed, and  continue  in  court)  be  entitled  to  $1.50  per  day 
for  attendance,  and  five  cents  per  mile  each  way  for  neces- 
sary travel,  but  if  you  are  called  on  the  first  day  or  any  other 
day,  either  in  the  forenoon  or  afternoon,  and  fail  to  answer, 
your  fees  for  the  day  may  be  deducted,  and  a  fine  imposed  on 
you  by  the  court.  Hand  this  notice  to  the  U.  S.  District  At- 
torney on  your  arrival  at  court. 

(i)  This  notice  is  used  in  some  districts. 

709 


7XO  marshal's  blanks. 

No.  753. 

Return  of  Marshal  of  Service  of  Subpoena. 

The  United  States  of  America, 

District  of ,  ss. 

I  received  this  writ  at  Cincinnati,  at o'clock M.^ 

on  the day  of ,  i8 — ,  and  served  the  same  by  copy 

as  follows : 

Personally,  on ,  at o'clock M.,  on  the 

day  of ,  1 89-. 

At  residence, ,  at  o'clock, M.,  on  the 

day  of ,  189-. 

And  the  other  persons  named  in  said  writ  are  "not  found" 
in  said  district  this day  of ,  189-. 

The  distance  from  the  court  to  the  place  of  service  most 
remote  therefrom  is miles ;  and  the  extra  travel  neces- 
sary to  serve  the  other  persons  named  herein  is miles ; 

and  my  actual  and  necessary  expenses  in  serving  this  writ 
are,  by  dates  and  items,  as  follows : 

18 — , ,  I  paid  to ,  for ,  $ . 

Total  expenses,  $ . 


U.  S.  Marshal, 
Per ,  Deputy. 

No.  754. 

Marshal's  Summons  for  Juror. 

The  United  States  of  America, 

District  of . 

To .  U.  S.  Marshal's  Office, 

,  189-. 

Sir:     You  are  hereby  summoned  to  attend  as  a juror 

at  the court  of  the  United  States,  for  the district 

of ,  to  be  held  in  the  United  States  court-house  at > 


marshal's  blanks.  711 

in  the  county  of ,  on  Monday,  the day  of next, 

at o'clock  A.  M.     Hereof  fail  not. 

Given  under  my  hand  the  day  and  year  above  written. 


United  States  Marshal 
for  the District  of  — 


No.  755. 
Claim  of  Juror  for  Fees. 

The  United  States, 

To ,  Dr. 

For  attendance  as upon  the court  of  the  United 

States  for  the district  of on  the  following  days,  viz. : 

days  at  $2.cx)  per  day,  $ — — . 

Received, , ,  189-,  of ,  marshal  of  the  United 

States  for  said  district, dollars,  in  full  of  the  foregoing 

account.  . 


712 


marshal's  blanks. 


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marshal's  blanks.  713 

No.  757. 

Certificate  as  to  Executions. 

The  United  States  of  America, 

District  of ,  ss. 

I, ,  marshal  of  the  United  States,  within  and  for  the 

district  aforesaid,  do  hereby  certify  that  I  have  no  execu- 
tions in  my  hands  issued  out  of  any  of  the  courts  of  the 
United  States  requiring  me  to  levy  upon  goods  or  chattels, 

lands  or  tenements  owned  by . 

In  witness  whereof,  I  have  hereunto  set  my  hand,  at , 

this day  of ,189-.  , 

United  States  Marshal. 
By ,  Deputy. 


No.  758. 

Commission  of  Deputy  Marshal. 

The  United  States  of  America, 

District  of . 

To  All  who  shall  see  these  Presents,  Greeting: 

Know  ye,  that  reposing  special  trust  and  confidence  in  the 

integrity,   ability,   and   diligence  of  ,  of  county, 

,    I   have   appointed    him   a  deputy    marshal    of    the 

United  States,  in  and  for  the district  of ,  and  do 

authorize  and  empower  him  to  execute  and  fulfill  the  duties 
of  that  ofiice  according  to  law,  until  this  commission  is 
revoked. 

In  testimony  whereof  I  have  hereunto  set  my  hand,  at 
,  this day  of ,  189-. 


Marshal  of  the  United  States, 

for  the District  of . 

[Add  oath  of  office.     See  No.  736.] 


714  marshal's  blanks. 

No.  759. 

Bond  of  Deputy  Marshal.  ■ 

Know  all  Men  by  these  Presents : 

That  we, ,  as  principal,  and ,  and  ,  as  sure- 
ties, all  of county,  and  state  of ,  are  hereby  firmly 

bound  unto ,  marshal  of  the  United  States  for  the dis- 
trict of ,  in  the  sum  of dollars,  lawful  money  of  the 

United  States,  to  be  paid  to  the  said ,  for  the  payment 

of  which,  well  and  truly  to  be  made,  we  bind  ourselves,  our 
heirs,  executors  and  administrators,  jointly  and  severally, 
firmly  by  these  presents. 

Signed  with  our  hands  and  sealed  with  our  seals  this 
day  of ,  1 89-. 

The   condition   of  the   above    obligation    is    such    that, 

whereas,  the  said ,  marshal  of  the  United  States  for  the 

district  of ,  has  appointed  the  said to  be  dep- 
uty marshal  of  the  United  States  for  the  said  district:    Now, 

therefore,  if  the  said shall  well  and  truly  perform  all 

and  singular  the  duties  of  said  office  according  to  law,  and 
keep  the  said  marshal  as  aforesaid  harmless  and  indemnified 
on  account  of  his  acts  as  such  deputy  marshal,  then  this 
obligation  to  be  void ;  otherwise  to  remain  in  full  force  and 
virtue. 

Executed  in  the  presence  of 

.  .     l^Seal.'l 

.  .     [Sean 

.  .     [5^a/.J 


The  State  of  Ohio, 
County. 


I  hereby  certify  that ,  sureties  on  the  bond  of 

deputy  United  States  marshal  for  the district  of 

are  good  for  the  amount  of  said  bond.  , 

County  Treasurer  of County. 


> 


marshal's  blanks.  715 

No.  760. 

Oath  of  Special  Deputy  Marshal. 

The  United  States  of  America, 
District  of ,  ss. 

I, ,  having  been  duly  appointed  a  special  deputy  United 

States  marshal  for  the district  of  the ward  of  the  city 

of  , ,  by ,  United  States  marshal  for  the 

district  of ,  do  solemnly  swear  that  I  will  discharge  and 

perform  all  the  duties  of  my  said  office  as  special  deputy  mar- 
shal, faithfully  and  impartially.  . 

Sworn  and  subscribed  before  me  this  day  of , 

189-.  , 


U.  S.  Commissioner. 


No.  761. 

Oath  of  Supervisor  of  Election. 

The  United  States  of  America, 
District  of ,  ss. 

I, ,  having  been  duly  appointed  a  supervisor  of  elec- 
tions in district  of  the ward,  in  the  city  of , 

by  the  circuit  court  of  the  United  States,  for  the district 

of  ,  by   commission,  dated   the  day  ,  18 — , 

do   solemnly that   I   will   discharge   and    perform   all 

the  duties  of  my  said  office  as  supervisor,  faithfully  and  im- 
partially.   . 

Sworn  and  subscribed  before  me  this  day  of , 

18—.  , 


U.  S.  Commissioner. 


7i6  marshal's  blanks. 

No.  762. 

Voucher  and  Receipt  for  Bailiff's,  Crier's,  etc.,  Fees, 

The  United  States  of  America, 

By ,  United  States  Marshal,  - 

189-. 


District  of 
To- 


,  Dr. 


For  services  as in  attendance  on 

the  United   States  courts    for  the  

district  of ,  for  the  quarter  ending 

,  18—. 

Attendance  charged  for  the  following 
days: 

1  2  3  4  5  6  7  8  9  10  II  12 
13  14  15  16  17  18  19  20  21  22 
23    24    25    26    27    28    29    30    31 

123456  789  10  II  12 
13  14  15  16  17  i^  ^9  20  21  22 
23    24    25    26    27    28    29    30    31 

123456789  10  II  12 
13  14  15  16  17  18  19  20  21  22 
23    24    25    26    27    28    29     30    31 

Total  number  of  days, ,  at  $2. 


Received  from 


,  189-. 

-,  United  States  Marshal,  the  sum  of 


dollars,  amount  in  full  due  me  as  above  stated. 


marshal's  blanks.  717 

No.  763. 
Schedule  of  Fees. 

The  United  States  ^  The  Circuit  Court  of  the  United  States^ 

vs.  y  District  of , 

.        j     Charge . 


Amount  brought  forward, 

Warrant  issued  by ,  U.  S.  commission- 
er at  Columbus,  O., 

Arrested  at ,  by  deputy ,   *.    .    .    . 

Before ,  U.  S.  commissioner  at .  . 

Attended  by  deputies , 

Mileage  from to  place  of  arrest, 

miles,  at  6  cents, 

Mileage  for  deputy  in  charge  of  prisoner, 
miles,  at  10  cents, 

Mileage  for  prisoner, miles,  at  10  cents, 

Mileage  for  guard, miles,  at  10  cents, 

Support  of  prisoner  while  in  custody, .   .    . 

Expenses  endeavoring  to  arrest , 

daj'S,  at  $2, 

Bail  bond  to trial  by  U.  S. ,   .    .    . 

For  discharge  of  prisoner, 

Service  of  warrant  of  commitment  to 

jail,  for  trial by  U.  S.  court 

commitment, 

Mileage  from to  jail  for  deputy,  pris- 
oner, and  ,  guard, miles  each, 

miles,  at  10  cents, 

Serving  subpoenas  at ,  on ,    .    .    . 


Voucher  No. 


Amount  carried  forward, 
,    Sheet . 


7i8  marshal's  blanks. 

No.  764. 

Certificate  for  Wages  of  Guard  of  Prisoner. 

The  United  States  of  America, 

District  of . 

, ,  189-. 

I  hereby  certify  that  I  have  been  employed  and  have 
acted days  as  a  guard  over ,  a  United  States  pris- 
oner, in  charge  of ,  deputy  marshal,  from to , 

being  a  distance  of miles. 

(Name  of  guard) , 


(Name  of  witness)  — 
(Post-ofiSce  address) 


(Post-office  address) 


No.  765. 

Account  Current  U.  S.   Marshal. 

Abstract  of  Fees   and    Expenses  of ,  Deputy    United 

States  Marshal  for  the District  of ,  from , 

189-,  to ,  189- : 

Subvoucher  No.  i,        $ 

Subvoucher  No.  2,        

Subvoucher  No.  3, -. 

Subvoucher  No.  4, 

District  of ,  ss. 

,  deputy  United  States  marshal  for  said  district,  being 

duly  sworn,  deposes  and  says  that  the  services  stated  in  the 
vouchers  mentioned  in  the  foregoing  abstract,  and  which  are 
thereunto  attached,  have  been  rendered  in  good  faith,  as 
therein  stated ;  that  the  expenses  charged  therein  were  nec- 
essary, and  have  been  paid,  and  that  all  the  items  charged 
are  correct  and  legal,  as  he  verily  believes. 

Sworn  and  subscribed  this day  of ,  189-,  before 

me.  , 

Dep.  U.  S.  Marshal. 


marshal's  blanks.  719 

No.  766. 

Deputy  Marshal's   Report  in   Criminal  Case,  before 
United  States  Commissioner. 

, ,  1 89-. 

United  States  Marshal, , : 

Sir :     Below  find  report  of  my  services,  etc.,  in  the  case  of 

the  United   States  vs. ,  charged  with ,  on  affidavit 

of . 

On ,  189-,  warrant  was  issued  by ,  U.  S.   com- 
missioner   at  ,  ,  and    received    by    me  on  , 

1 89-,  at , . 

I  arrested  the  defendant  on ,  189-,   at ,  in 


county  (i),  ,  and  took before ,  U.  S.  commis- 
sioner at , .     (2). 

I  employed as  guard  oyer  the  prisoner,  who  traveled 

from to ,  a  distance  of miles. 

On ,  189-,  defendant was  produced  before  Com- 
missioner   ,  and   in  default  of    bail  committed  to  

county  jail,  for  hearing,  \or  say^  released  on  bail  for  appear- 
ance before  said  commissioner]. 

I  executed  warrant  of  commitment  on ,  189- ;  dis- 
tance to  jail, miles. 

On ,  1 89-,  Commissioner issued  a  subpoena  for 

U.  S.  witnesses,  which  I  served ,  189-,  on  (3) ,  and 

,  1 89-,  on  (3) . 

In  serving  subpoena  I  traveled  from to to  serve 

most  distant  witness,  being  miles,  and  from to 

to  serve  other  witnesses,  being miles ;  total, 

miles.     This  travel  is  exclusive  of  that  on  warrant. 

On  ,    1 89-,   I  took  defendant   before  Commissioner 

,  and  a examination  of  the  charge  was  had,  after 

which  defendant, ,  remanded  into  custody  \or  say,  re- 
leased on  bail],  for . 

I  executed  warrant  of  commitment  to county  jail,  for 

trial   at court,  on  ,  189-.      Distance   to  jail  from 

commissioner's  office miles. 


720  marshal's  blanks. 

I  employed as  guard  over  prisoner ;  guard  traveled 

from to ,  a  distance  of miles. 

My  expenses  in  this  case  were  as  follows : 
In  traveling  to  execute  warrant,  from  receipt  of  writ  to  time 

of  arrest  (state  dates  and  items), . 

In  transporting  prisoner  to  the  commissioner's  office  (state 

dates  and  items), . 

For  subsistence  of  prisoner  (state  dates  and  items), . 

In    transporting  prisoner   to  jail    on  temporary  warrant  of 

commitment, . 

In  transporting  prisoner  from  jail  to  commissioner's  office  for 

hearing  (dates  and  items), . 

In  transporting  prisoner  to  jail  on  warrant  of  commitment 

for  trial  (dates  and  items), . 

For  subsistence  of  prisoner  en  route  to  jail  (dates  and  items)^ 


In  traveling  to  serve  subpoena  (dates  and  items), 


Dep.  U.  S.  Marshal. 

(i)  When  an  arrest  is  made  at  a  point  distant  from  a  town  or  post- 
office,  the  name  of  nearest  post-office  and  distance  therefrom  must  be 
stated. 

(2)  If  prisoner  is  taken  before  any  other  commissioner  than  the  one 
before  whom  warrant  was  made  returnable,  the  reason  therefor  must 
be  given. 

(3)  State  places  of  service,  as  well  as  names  of  witnesses  served. 


No.  767. 

Deputy  Marshal's  Report  to  the  United  States  Marshal. 

Deputy  Marshal's  Report  in Case, 

before  the Court  of  the  United  States, 

for  the District  of . 

United  States  Marshal, .  ,  189-. 

Sir:  Below  find  report  of  my  services,  etc.,  in  the  case  of 
vs. . 

(2)  • 


marshal's  blanks.  721 

On  ,  1 89-,  writ  of   (3) was  issued  out  of  said 

court  at ,  returnable  on day  of ,  189-,  at . 

I  received  said  writ  on  the day  of ,  189-,  at , 

and  served  it  as  follows :  On  (4) ,  at ,  in county, 

and  on  (4) ,  at ,  in county. 

The  distance  traveled  to  serve  said  writ  on  most  distant 

person  was  miles,  and  the  additional   travel  to  serve 

others, miles ;  total, miles. 

On ,  1 89-,  a  warrant  was  issued  at ,  for  the  re- 
moval of  defendant  from to for  trial.     I  received 

this  writ  on ,  189-,   at ,  and  executed  it  on , 

1 89-,  by  delivering  the  defendant  into  the  custody  of ,  at 

.     In  going  to  serve  this  writ  I  traveled  from to 

, miles;  and  the  distance  traveled  in  transporting 

prisoner  was miles. 

I  employed as  a  guard  over  prisoner,  who   traveled 

from to , miles,  as  per  his  certificate  herewith. 

On  ,  1 89-,  a  writ  of  attachment  for  witness  in  con- 
tempt was  issued  at .     I  received  said  writ  at ,  on 

the day  of ,  189-,  and  served  it  as  follows: 

On  (4) ,  at ,  in county. 

In  going  to  serve  said  writ  I  traveled  from to , 

a  distance  of miles. 

In   transporting    witness    to   court  at the    distance 

traveled  was miles ;  I  employed as  a  guard  over 

the  witness,  who  traveled  from  to ,  a  distance  of 

miles,  as  shown  by  his  certificate  herewith. 

The  witnesses  were  brought  into  court  on ,  189-,  and 

(5) on ,  1 89-,  a  warrant  of  commitment  to was 

issued  out  of  said  court  at .     I  received   this   writ  on 

,  1 89-,  at ,  and  executed  it  on ,  189-,  by  de- 
livering the  defendant  into  the  custody  of  the  warden  of  said 
prison,  at . 

In  transporting  defendant  on  this  writ  a  distance  of  

miles  was  traveled. 

I  employed as  a  guard  over  prisoner,  who  traveled 

from to , miles,  as  per  his  certificate  herewith. 


722  marshal's  blanks. 

My  expenses  in  this  case  were  as  follows: 

On  writ  of (state  dates  and  items) : . 

On  warrant  of  removal  (dates  and  items) : . 


Meals  furnished  prisoner  (dates  and  items) : 

On  attachment  for  witnesses  (dates  and  items)  :- 

Meals  furnished  witnesses  (dates  and  items) : 

On  warrant  of  commitment  (dates  and  items)  :— 
Meals  furnished  prisoner  (dates  and  items) : 


Deputy  United  States  Marshal. 

(i)  Deputies  will  use  this  form  in  reporting  Service  of  Court  Process 
in  either  criminal  or  civil  cases. 

(2)  If  a  criminal  case,  note  here  the  charge  or  indictment. 

(3)  "  Subpoena,"   if    a  criminal  case,   or  "  summons,"   "  chancery 
subpoena,"  etc.,  if  civil. 

(4)  Dates  of  services  and  names  of  persons  served  with  writ. 

(5)  "  Discharged  from  custody,"  or  "  committed,"  as  the  case  may 
be. 


No.  768. 

Schedule  of  Fees  for  Deputy  Marshals. 

The  United  States  of  America, 

To ,  U.  S,  Marshal,  Dr., 

For  services  rendered  by  his  Deputy, ,  in  the  following 

Criminal  Cause,  to  wit : 
g  r         The  United  States  ^ 

\  ^^-  f  Charge : . 

Warrant  issued  by ,  United  States  Commissoner  at , 


on  afl&davit  of ,  received   at on  the day 

of ,  1 89-.     Executed  by  arresting  the  defendant  at 

,  in county, miles  from ,  and  taking 

before ,  United  States  Commissioner  at , 

miles  from  the  place  of  arrest,  on  the day  of 

,  189-. 


marshal's  blanks. 


723 


EXPENSES  INCURRED  WHILE  ENDEAVORING  TO 
ARREST  DEFENDANT,  VIZ.: 


R.  R. 
FARE. 


TEAM 
HIRE. 


SUBSIS- 
TENCE. 


days.    Total  expenses, 


Amt.  chargeable 


to  the  United  States  not  exceeding  $2  for  each  day. 


Arrest 

miles  going,  at  6  cents 

miles  returning,  self  and   prisoner,  at 

IOC.  each 

miles  returning,  guard,  at  loc 

meals  for  prisoner,  at 

Warrant  of  commitment  for  temporary  con- 
finement issued  by  commissioner . 

Executed  by  delivering  defendant  to  jailer  of 
county,  at  

Serving  warrant,  $2.00.  Committing  defend- 
ant, at  50c 

miles  to  jail,  self  and  pris.  at  loc.  each. 

miles,  jail  to  commissioner's  office  and 

return,  self  and  prisoner,  at  loc.  each    . 

Discharge  on  bail  bond 

days  attendance  as  officer  before  com- 
missioner   

Subpoena  issued  by  commissioner  ,  for 

U.  S.  witnesses 


Served  on 


at 


and  on 


miles  from  ■ 


miles  from 


and 


on 


miles  from 


services  at  50c 

miles  going,  at  6c.,  in  addition  to  mile- 
age charged  above,  on  warrant   .... 

Warrant  of  commitment  for  trial  at term 

189 — ,  issued  by  commissioner .    . 

Executed  by  delivering  deft,  to  jailer  of 

countj',  at 

Serving  warrant,  $2.00.  Committing  deft, 
at  50c. 


miles  to  jail,  self  and  prisoner,  at  loc. 

each 

miles  guard  over  prisoner,  at  loc. 

meals  for  prisoner  en  route  to  jail     .    . 

Discharging  defendant  when  case  fails  .  .   . 

Total, 


DOLLARS. 


CENTS. 


724 


marshal's  blanks. 


The  United  States  of  America, 

District  of ss. 

,  Deputy  United  States  marshal  for  said  district,  being 

duly  sworn,  deposes  and  says  that  the  services  stated  in  the 
foregoing  account  have  been  rendered  in  good  faith,  as  therein 
stated  ;  that  the  expenses  charged  therein  were  necessary, 
and  have  been  paid,  and  that  all  the  items  charged  are  correct 
and  legal,  as  he  veribly  believes. 

Sworn   and  subscribed  this day  of 189-,  before 

me.  , 

Deputy  United  States  Marshal 
for  the District  of . 


No.  769. 

Affidavit  of  Salaried  Officer  of  the  Government  for  Actual 

Expenses. 

The  United  States  of  America, 
To ,  Dr. 

For  expenses  incurred  in  attending  the term,  189-,  of 

the court  of  the  United  States,  at  the  city  of , 

as  a  witness  on  behalf  of  the  government  in  the  case  of 
the  United  States  vs. ,  as  follows: 


189 


Fee  for  affidavit  to  this  account 


Total,   % 


25 


The  United  States  of  America, 

District  of ,  ss. 

Before  me,  personally  appeared  the  above-named  , 

who,  being  duly  sworn  according  to  law,  deposes  and  says 
that  he  is  a  salaried  officer  of  the  government,  to  wit, ; 


marshal's  blanks. 


725 


that  in  obedience  to  a  subpoena  issued  out  of  the  court  above 
stated,  he  necessarily  incurred  the  expenses  above  set  forth 
for  travel  and  subsistence,  and  that  by  the  regulations  of  the 

,  in  which  he  is  employed  he  is  not  entitled  to  receive 

and  has  not  received,  and  will  not  claim  therefrom,  any  al- 
lowance whatever  for  the  same. 

Sworn  and  subscribed  this day  of ,  189-,  before 

me. 


No.  770. 

Voucher  for  Fees  and  Expenses  of  Deputy  Marshal. 

Subvoucher,  No. . 

The  United  States  of  America, 

To ,  United  States  Marshal,  Dr. 

For  fees  and  expenses  of  Deputy in  the  following 

case,  viz.: 


The  United  States 


vs. 


In  the Court  of  the  United  States, 

for  the District  of ,  issued  at 

-,  189-,  ;  Ret.  at ,  189-; 


Rec'd  by  Dep.  at 
as  follows: 


-,  1 89-;    Served 


189 


On 

—  services,  at 

—  miles,  going  only  from  

to at  6c 

—  miles,  extra  travel  from 

to at  6c 

Actual  expenses  charged  in  lieu  of  mile- 
age, viz 


INDEX. 


Acceptance —                                                           form  page 

of  service  by  attorney, 14  13 

of  service  of  citation, 668  623 

of  service  of  notice, 14  13 

Admiralty. 

affidavit  to  obtain  attachment  on  libel  for  wages,    .  626  592 

answer  and  cross  libel, 580  559 

by  an  agent  or  consignee  with  claim  interposed,  .579  558 

general  form, 576  556 

to  a  libel  in  personam, 577  557 

attachment  in  personam, 599  573 

claim  and  answer, 578  557 

by  the  United  States  attorney  on  behalf  of  the 
United  States  for  forfeiture  and  for  duties  in  a 

case  of  salvage  of  a  foreign  ship  and  cargo,  .  582  560 

of  owner, . ' 581  560 

certificate  of  magistrate, 628  593 

commissioner's   report, 615  585 

cost  bond  by  libel  and  in  personam, 595  570 

decree  dismissing  libel, 601  576 

for  libellant, 602  576 

for  libellant  when  vessel  has  been  released  on 

bond, 604  577 

for  salvage, 608  579 

for  sale  of  perishable  property, 610  580 

for  sale  of  vessel 609  579 

for  wages, 605  577 

in  proceedings  for  limitation  of  liability  in  ad- 
miralty,      611  580 

727 


PAGE 


540 


728  INDEX. 

Admiralty — Continued.  form 

in  rem  for  sale  of  vessel 603  577 

on  mandate  in  admiralty, 633  597 

pro  confesso 606  578 

pro  confesso  to  a  libel  in  rem, 607  578 

exceptions  to  commissioner's  report, 616  586 

to  a  libel, 583  562 

to  a  libel,  pre-emptory, 584  563 

information  in  admiralty, 571  547 

justification  of  sureties, 590  567 

libel   against   consignee   for   freight   on   a   bill  of 

lading, 564 

against  master   for  assault   and   beating  or   im- 
prisonment,       567  543 

against  merchandise  for  possession, 550  520 

against  vessel  for  repairs, 538  509 

against  owner  for  wages, 563  540 

by  mariner  for  wages, 539  510 

by  mariner  for  wages  after  ship  has  left  port,  .    ,542  513 

by  mariner  for  wages  without  written  contract,  .541  512 

for  wages  on  a  boat  on  navigable  rivers  and  lakes,.  544  514 

for  wages  on  discharge  before  beginning  voyage,.  543  5 1 3 

by  insurers  for  loss  by  collision, 555  531 

by  a  part  owner  against  his  partner  for  security 

for  the  safe  return  of  the  vessel, 551  521 

for  compensation   by  a    superintendent  for  the 

building  of  a  ship 560  538 

for  damage  by  collision, 554  528 

for  lockage  in  a  public  navigable  river,    ....  566  542 

for  pilotage  in  extraordinary  danger, 547  517 

for  pilotage  under  state  regulations 546  516 

for  pilotage  to  sea, 545  515 

for  salvage, 552  523 

for  supplies, 561  539 

for  supplies  with  attachment  clause, 562  539 

for  the  nonfulfillment  of  a  contract  for  transporta- 
tion of  goods, 549  519 

for  wharfage  (z«  r<?»2), 548  518 

for  wharfage  (pi  personam), 565  541 


INDEX.  729 

Admiralty — Continued.                                                 form  page 

general  form  of  libel  of  information, 571  547 

inpersonam, 556  535 

with  prayer  for  attachment  of  goods,  etc.,   .  557  536 

with  prayer  for  monition, 558  537 

in  rem 537  508 

in  rem  and  personam, 569  545 

interrogatory  clause  in  prayer, 559  537 

intervening  libel, 570  546 

on  a  bottomry  bond  against  the  vessel,  freight, 

and  cargo, 553  526 

to  enforce  decree  of  court  of  admiralty  of  an- 
other district, 568  544 

mandate  in  admiralty, 632  596 

monition   and  attachment, 598  572 

notice  for  publication, 624  591 

of  appeal  in  admiralty, 629  594 

of  appraisement, 620  588 

of  motion, 625  592 

to  appraisers, 618  587 

oath  by  corporation  to  a  libel  or  answer,    ....  586  564 

by  proctor  to  a  libel  or  answer, 588  565 

of  agent  or  attorney  in  fact  to  a  libel  or  answer,  .  587  564 

of  appraisers 619  587 

to  libel  or  answer ^  .    .    .  585  563 

order  appointing  appraisers, 617  587 

for  mandate  in  admiralty, 631  595 

for  transfer  to  trustee. 622  588 

of  the  court  on  the  return  of  mesne  process  in  rem,  612  584 

petition  against  proceeds  in  the  registry, 574  554 

against    proceeds    in  the    registry  against    the 

claimant 575  555 

for  limitation  of  liability, 572  548 

of  appeal, 630  594 

to  bring  in  vessel  under  rule  59, 573  552 

preliminary  summons  for  seamen's  wages,  .    .    .    .627  593 

proclamation  on  the  return  of  process  in  rem,  .    .613  584 

report  of  appraisers, 621  588 

replication  to  claim  and  answer, 614  584 


730  INDEX. 


PAGE 


Admiralty — Continued.  FORM 

schedule  to  be  attached  to  libel  for  wages,   ....  540  512 
stipulation  by  defendant  on  arrest  in  an  action  in 

personam, 593  569 

for  costs  by  claimant, 592  568 

for  costs  by  libellant /« /^r.so«a!/«, 591  568 

for  costs  by  libellant  in  a  suit  in  rem 589  566 

for  release  of  vessel, 596  571 

for  the  safe  return  of  a  ship, 594  569 

summons  (preliminary)  for  seamen's  wages  ,  .    .    .  627  593 

transfer  to  trustees, 623  59a 

verification  of  pleadings  {see  Oath). 

warrant  of  restitution, 597  572 

writ  of  seizure 600  574 

Affidavit — 

of  attendance  of  witnesses, 448  401 

of  complaint  before  commissioner, 437  393 

for  search  warrant  (internal  revenue), 451  403 

for  search  warrant  under  act  of  July  10,  1891,    .    .  453  404 

of  service  of  citation, 669  623 

to  be  annexed  to  a  bill  of  interpleader,     .    .    .105-107  113 

to  obtain  a  ne  exeat, 239  206 

to  obtain  attachment  on  libel  for  wages 626  592 

to  bill,  answer,  etc.  {see  Veriji cation), 

to  petition  for  writ  of  habeas  corpus, 525  499 

of  service  of  notice, 256  216 

Amendment — 

to  answer, 236  204 

to  answer  in  patent  case, 370  338 

to  bill, 235  203. 

Ancillary  Proceedings — 

affidavit  to  petition, 326  288 

bill,  ancillary,  for  foreclosure  of  railway, 317  277 

in  re   receivers  for    a    manufacturing  company 
where  receivers  were    appointed    by  a    state 

court  before  a  federal  court  took  jurisdiction,  316  270 

supplemental  for  foreclosure  of  railway,  ...  318  278 

certified  proceedings  before  magistrate 328  291 

commissioner's  report  on  intervention, 334  30a 


INDEX.  731 

Ancillary  Proceedings. — Continued.                       form  page 

decree,      337  303 

taking  ancillary  jurisdiction, 319  280 

confirming  master  commissioner's  report  on  in- 
tervention,    335  302 

master's  report  on  intervention, 334  300 

motion  to  refer  intervention  to  special  master,  .    .  329  293 
to    restrain    receivers    in   accordance  with   the 

above  petition, 333  300 

notice  of  petition 324  286 

oath  of  special  master  commissioner, 321  284 

to  petition 326  28^ 

order  appointing  commissioner  to  hear  and  report 

claims, 320  283. 

ancillary,  confirming  and  directing  sale  to  a  re- 
organized manufacturing  company 338  304 

granting  leave  1;o  intervene 331  29& 

that  receivers   gfive    notice  to   stockholders   by 

publication, 323  285 

to  file  amendment,  and  extending  receivership,   .  322  284 
petition  for  an  order  authorizing  receivers  to  de- 
liver possession  of  railway  property 336  302 

for  order  limiting  time  to  present  claims,  etc.,  .   •.  325  286 

of  intervention, 327  289 

of  intervention  (another  form), 330  293 

of  intervention  (zwr^  manufacturing  company),  .332  299 

verification  of  petition, 326  28& 

Ansv^ers — 

admiralty, 576  556 

by  an  agent  or  consignee  with  claim  interposed,  579  558 

and  cross  libel, 580  559 

to  a  libel  in  personam, 577  557 

allegations  used  in  framing, 181 

accounts  (reference  to  book  containing  them),   .189  181 

refused,  as  being  useless,  before  decree,  .    .    .  190  181 

admission  for  purposes  of  the  suit, 191  181 

claim  of  benefit  of  same  defense  to  amended,  as 

to  original  bill, 206  187 

claims  made  by  defendant 192  182 


732  INDEX. 

Answ^ers — Continued.  FORM     page 

craving  leave  for  greater  certainty 193  183 

to  refer  to  codefendant's  answer, 194  183 

information  and  belief, 195  183 

ignorance, 196  184 

qualified  denial, 197  184 

reference  to  schedule, 198  184 

release,  craving  some  benefit  as  if  pleaded,  ...  199  185 

settled  accounts,  claim  of, 200  185 

submission  by  trustees  to  act, 201  185 

traverse 202  185 

trustee,  desire  to  be  discharged 203  186 

vexatious  suit ;  settled  accounts  ;  claim  of  benefit, 

of  defense,  as  if  raised  by  plea  or  demurrer,    .  204  186 

verification  of  answer, 188  180 

want  of  interest  in  plaintiff;  craving  some  benefit 

as  if  defense  by  demurrer, 205  186 

commencement  of, 176  177 

by  an  infant, 178  177 

by  husband  and  wife, 179-80  177 

by  a  lunatic  or  idiot,  etc., 182  178 

by  wife  separately,  under  an  order, 183  178 

where  the  bill  misstates  the  names  of  defendants,  181  178 
where  there  is  only  one  defendant  to  an  original 

bill 177  177 

conclusion  of, 187  180 

first  paragraph  of, 184  179 

by  a  formal  party  who  is  a  stranger  to  the  facts,    .185  179 

by  an  infant, 186  179 

of  an   executrix  submitting   to  act  under  the  in- 
demnity of  the  court 207  187 

of  the  executors  of  a  deceased  acting  executor  to  a 

bill  of  revivor, 208  188 

of  jailer  to  rule  to  show  cause, 535  505 

of  a  widow  electing  to  take  the  bequests  made  to 
her  by  a  will,  and  to  release  all  interest  in  the 

devised  estates, 209  190 

patent  case,  in  a, 354  330 

alleging  imperfect  specification, 356  333 


INDEX.  735 

Ansv^rers — Continued.                                                   form  page 

abandonment, 363  336 

defective  specification, 357  334 

invention  by  another  person, 364  336 

limitation  of  claims  of  patent  by  proceedings  in 

the  patent  office, 360  335 

hmitation  of  duration  of  patent  by  a  prior  for- 
eign patent, 365  336 

denying  assignee's  right  to  sue 355  333 

grant  of  licenses  and  public  acquiescence,    .    .    .361  335 

plaintiff's  title 362  336 

prior  adjudication, 359  334 

utility, 358  334 

suits  at  law,  in  a 7  9 

supreme  court,  in  the, 709  674 

Appeal — 

entry  allowing  {habeas  corpus), 531  505 

petition  of  assignment  of  errors  on 536  502 

to  the  circuit  court  of  appeals, 529  501 

in  admiralty, 680  629 

Appearance,      11  12 

by  defendant  in  person, 13  12 

for  special  pleading, 12  12 

Appellate  Jurisdiction    of    Supreme   Court  {see 

Appellate  Proceedi7igs), 656  613 

Appellate  Proceedings — 

acceptance  of  service  by  attorney 668  623 

afl&davit  of  service  of  citation, 669  623 

appeals  in  admiralty, 680  629 

appearance, 682  63a 

assignment  of  errors  (suit  at  law), 658  615 

of  errors  in    the   supreme  court  of  the  United 

States, 659  616 

of  error  on  appeal 672  625 

bond  on  appeal, 673  626 

on  writ  of  error, 662  618 

certificate  by  clerk  under  9th  rule  of  the  supreme 

court, 694  636 

of  questions  by  circuit  judges  to    the  supreme 

court, 684  631 


734  INDEX. 

Appellate  Proceedings — Continued.                         form  page 

citation, 667  622 

on  appeal, 674  627 

decree, 676  627 

annulling  former  decree  and  revoking  a  mandate,  677  628 

of  dismissal  framed  to  prevent  prejudice,  .    .    .  679  629 

explanation, 656  613 

habeas  corpus, 693  636 

joinder  in  error, 660  617 

judgment, 670  624 

error  to  state  court, 665  621 

mandate 695,  696  637 

motion   to  dismiss, 687  633 

to  dismiss  or  affirm 688  633 

notice  of  submission  of  motions, 686  632 

order  and  decree  where  the  court  has  no  jurisdic- 
tion,    678  628 

allowing  writ   of  error, 661  617 

dismissing  cause  for  failure  to  print, 691  635 

dismissing  cause  under  rule, 692  635 

dismissing  cause  on  motion  filed 689  634 

dismissing  case  on  call 690  634 

on  petition  for  writ  of  certiorari 699  654 

petition  on  appeal 671  625 

for  writ    of    certiorari  to  circuit  court  of   ap- 
peals,    697  640 

on  writ  of  error, 657  614 

receipt  for  record, 683  631 

return  by  clerk  of  writ  of  error, 666  62 1 

service  of  citation, 675  627 

stipulation  reducing  record, 681  630 

verification  to  writ  of  certiorari, 698  654 

writ  of  certiorari, 685  631 

of  error, 663  619 

of  error  to  state  court, 664  620 

Application — 

for  discharge  (poor  convict), 456  407 

for  review  and  reversal  of  decisions  of  the  board 

of  general  appraisers  under  the  customs  law,      8  10 


INDEX.  735 

Assignment —                                                              form  page 

of  errors  (suit  at  law),      658  615 

of  errors  in  the  supreme  court  of  the  United  States,  659  615 

of  error  on  appeal, 672  625 

Attachment  Bond, 50  34 

in  personam, 509  573 

to  compel  answer, 228  201 

Bench  W^arrant  for  Removal,      466  414 

Bills  of  Complaint — 

afl&davit  to, 85  53 

against  an  agent  for  mismanagement, 108  114 

an  executor  by  legatees  and  the  administrator  of 

a  deceased  legatee, 95  77 

by  husband  of  legatee  against  executor, 93  72 

by  an  executor  and   trustee  under  a  will  to  carry 

the  trusts  thereof  into  execution, 96  80 

by  foreign  consul  against  a  citizen  of  the  United 

States, 700  655 

by  one  state  against  another  to  settle  the  bound- 
ary,  701  655 

caption  and  address 67  45 

charging  part, 72  47 

commencement, 68  45 

by  other  than  an  individual, 69  46 

confederating  part, 71  46 

copyright  case, 413  367 

creditor's  bill  against  a  corporation  and  its  stock- 
holders to  enforce  statutory  liability,   ....    87  56 
by  simple   contract,  creditors  against  executors 

of  deceased  debtor  for  payment  of  his  debts,  .    .  86  54 

for  dissolution  of  a  partnership, 88  60 

foreclosure  of  mortgage, 90  65 

for  an  account  of  partnership  dealings  after  a  disso- 
lution, and  for  a  receiver, 89  63 

formal  parts  of  a  bill,  (see  below). 

for  the  settlement  of  a  boundary  between  states,  702  656 

interrogating  part, 74  48 

introduction, 68,  69  45, 46 


736  INDEX. 

Bills  of  Complaint — Continued.                                 form  page 

jurisdiction  clause, 73  47 

-athtobill, 85  53 

of  interpleader  (old  English  form), 103  109 

of  review  for  new  matter 119  135 

of  review  to  examine  and  reverse  a  decree,      ...  117  133 
of  revivor  and  supplement  where  both  parties  in 

original  bill  are  deceased, 116  131 

of  revivor  (before  decree)  by  the  administrator  of 

the  plaintiff  in  the  original  suit, 115  129 

on  behalf  of  infant  legatees, 94  74 

patent  case,  in  a, 339  307 

in  the  nature  of  a  supplement  bill.     Allegation 

when  patent  has  been  assigned  pending  suit,   .  344  313 

setting  forth  prior  adjudication, 343  312 

to  cancel  an  interfering  patent, 345  314 

to  compel  issue  of  patent, 346  317 

where  an   assignment  of  the  patent  has  been 

made  before  bringing  the  suit, 340  311 

where  a  reissued  patent  is  sued  on 341  312 

where  the  suit  is  brought  by  the  administrator 

of  a  patentee 342  312 

prayer  for  injunction 77  50 

for  the  production  of  deeds,  papers,  etc.,  ....    78  50 
for  process  where  the  government  is  a  defend- 
ant,    81  52 

for  relief, 75.  7^  49.  5© 

for  subpoena, 79,  80  51 

for  writ  of  certiorari 83  52 

for  writ  of  ne  exeat, 82  52 

of  bill  of  interpleader 194  112 

signature  of, 84  53 

stating  part, 70  46 

supplemental  bill, no  119 

against  the  assignee  of  a  bankrupt  defendant,  .    .  in  125 

in  a  patent  case 113  127 

to  an  original  and  amended  bill  filed  by  a  lessee 
for  the  specific  performance  of  an  agreement 

to  grant  a  further  lease, 112  126 


INDEX.  737 

Bills  of  Complaint — Contintied.                                  form  page 

to  cancel  decree  of  naturalization, loi  103 

a  written  instrument,  (a  bill  of  exchange),   ...    97  84 

to  enforce  a  lien  against  a  distillery, 102  108 

specific   performance   of  a  contract   to   make   a 

policy  of  insurance, 98  89 

to  enjoin  the  obstruction  of  a  river, 100  100 

to   have   goods  redelivered  which    have    been   de- 
posited as  a  security  for  money  lent, 91  68 

to  perpetuate  testimony, 114  127 

to  redeem  by  purchaser  of  an  equity  of  redemption 

from  the  assignee  in  insolvency  of  the  mortgagor,  92  69 

to  reform  a  policy  of  insurance,      99  95 

to  set  aside  a  decree  obtained  by  fraud, 121  139 

to  suspend  a  decree, 120  137 

to  subject  property  of  absent  "defendant  to  pay  a 

judgment, 715  677 

trade-mark  (common  law), 415  379 

registered  in  the  United  States  patent  office,  .    .  414  371 

verification      85  53 

Bond— 

for  costs, 36  23 

in  admiralty 595  570 

in  place  of  injunction, 385  344 

on  appeal, 673  626 

on  writ  of  error, 662  618 

on  removal  from  state  court 638  601 

upon  a  ne  exeat, 242  207 

Capias  ad  respondendum, 500  483 

Caption, i  7 

for  depositions  de  bene  esse, 24  17 

Certificate — 

at  close  of  depositions, 25  17 

of  counsel, 649  609 

of  discharge  of  poor  convict, 459  409 

of  extradition  proceedings, 463  412 

of  magistrate 628  593 

of  naturalization 751  708 

to  the  supreme  court, 684  631 

under  9th  rule  of  the  supreme  court, 694  636 


PAGE 


738  INDEX. 

Certiorari —  form 

for  removal  of  a  cause  from  a  state  court 653  6n 

petition  for  writ  to  court  of  appeals, 697  640 

Citation — 

on  appeal,    .    .    .  ^ 674  627 

on  error, 667  622 

to  appellee,      • 59  40 

to  defendant  in  error, , 60  41 

Claim  and  Ans\ver, 578  557 

by  the   United   States   attorney  on   behalf  of  the 
United   States  for  forfeiture  and  for  duties  in  a 

case  of  salvage  of  a  foreign  ship  and  cargo,     .    .  582  560 

of  owner, 581  560 

Clerk's  Blanks- 
certificate   as   to   official   character   of  clerk  by  a 

judge, •    •    • 727  687 

as  to  official  character  of  judge  by  the  clerk  of 

court, 728  688 

as  to  searching  record, 729  688 

of  admission  to  the  bar, 740  699 

for  copy, 726  687 

of  copy  of  entry  allowed  in  chambers, 725  686 

certified  copy  of  entry, 724  685 

commissioner's  certificate  of  appointment,   ....  741  700 

designation  to  hold  circuit  and  district  courts,      .    .  737  697 

entry,  general  form  of, 723  685 

oath   of   expenses   of    witness   on   behalf    of  the 

United  States, 742  700 

of  office, 736  697 

order  approving  clerk's  account, 735  696 

of  court  to  pay  account 730  689 

quarterly  statement  of  clerk, 734  695 

receipt  by  clerk  for  money  received, 745  702 

to  clerk  for  money  paid  out, 744  702 

report  of  committee  on  application  for  admission  to 

bar, 739  698 

schedule  No.  i, 731  690 

schedule  No.  2 — civil  cases 732  693 

schedule  No.  3 — criminal  cases 733  694 


INDEX.  739 

Clerk's  Blanks — Continued.          ^                             form  page 

statement  of  court  funds, 743  701 

summons  for  jurors 738  698 

Contempt  Proceedings — 

entry  of  distribution, 396  354 

motion  for  rule  to  show  cause,  etc.,  for  contempt,    .  389  347 

order  granting  motion  for  contempt, 390  348 

adjudging  defendant  guilty  of  contempt  and  fining 

him, 393  349 

adjudging    party    guilty   of    contempt    (another 

form, 394  349 

fining  defendant  for  contempt 395  350 

return  of  rule  by  marshal,        392  348 

rule  to  show  cause, 391  348 

Copyrights  and  Trade-Marks — 

amendment, 422  389 

appearance, 420  388 

bill  in  equity,  common  law  trade-mark, 415  379 

infringement  of  a  copyright, 413  367 

trade-mark  registered  in  the  patent  ofiSce,   .    .    .414  471 

assignment  before  bringing  suit, 416  385 

prior  adjudication, 417  386 

contempt  proceedings 431  390 

costs, 427  389 

declaration  at  law  in  copyright  case,      418  386 

at  law,  infringement  of  a  registered  trade-mark,  .419  386 

decree,  final  (copyright  case),      433  390 

final  (trade-mark  case), 434,  435  391 

dismissing  bill, 432  390 

depositions, 425  389 

de  bene  esse, 426  389 

injunction.     (See  perpetual  and  preliminary.) 

limiting  time  within  which  to  take  evidence,    .    .    .  424  389 

master, 429  390 

perpetual  injunction, 436  392 

preliminary  injunction, 430  390 

replication,      423  389 

security  for  costs 421  388 

stipulation  to  submit  cause  on  brief,      428  389 

writ  of  injunction 436  392 


740  INDEX. 

FORM  PAGE 

Cost  Bill, 28  20 

Cost  Bond, 36  23 

to  libel  in  personam, 595  570 

Commissioner's  Report, 615  585 

Commissioner,    U.    S.     {See  under  Criminal  Pro- 
ceedings^ 

Complaint, 2-7  9 

for  warrant, 460  410 

Criminal  Proceedings — 

afl&davit  of  petitioner  for  habeas  corpus, 525  499 

answer  of  jailer  to  the  rule  to  show  cause,   ....  535  505 

appeal,  entry  allowing,      531  503 

petition  of  assignment  of  errors, 530  502 

to  the  circuit  court  of  appeals, 529  501 

capias  ad  respondendum, 500  483 

commissioner,  before  a  United  States. 

afl&davit  of  attendance, 448  401 

of  complaint, 437  393 

for  search  warrant  under  act  of  July  10,  1891,   453  404 

for  search  warrant  (internal  revenue),   .    .    .    .451  403 

application  for  discharge  of  poor  convict,     .    .    .  456  407 

bench  warrant  for  removal 466  414 

certificate  of  discharge  of  poor  convict,    ....  459  409 

of  extradition  proceedings, 463  412 

complaint  for  warrant, 460  410 

fee  bill, 467  416 

final  commitment,      462  412 

mittimus, 444  398 

recognizance  for  appearance  before  circuit  or 

district  court, 442  396 

extradition,  complaint  for, 460  410 

extradition  warrant,      461  411 

mandate  to  jailer  to  produce  prisoner, 457  407 

oath  of  poor  convict 458  408 

order  to  pay  witness, 449  401 

poor  convict, 407 

proceedings   where   offender   is   arrested  in  one 
state  for  offense  committed  in  another  state 

before  indictment 464  413 

after  indictment 465  414 


INDEX.  741 

Criminal  Proceedings — Continued.                           form  page 

recognizance  of  witnesses, 446  399 

,    release  of  sureties, 441  396 

return  by  marshal  of  mittimus, 445  399 

seaman's    wages — proceedings    before    commis- 
sioner,    455  406 

search  warrant  (internal  revenue), 452  404 

under  act  of  July  10,  1891, 454  405 

subpoena  for  witnesses, 447  400 

surety  to  bond,  justification  of, .  440  395 

transcript  from  commissioner, 450  402 

temporary  mittimus,       443  397 

recognizance, 439  394 

warrant  of  arrest, 438  394 

criminal  information, •   .  496  476 

demurrer  to  an  indictment  or  information,    .    .    .    .511  490 

to  a  plea  in  bar,  .    .     • 513  491 

entry  discharging  jailer, 536  507 

ordering  discharge  of  prisoner 528  501 

of  distribution  upon  payment  of  fine, 522  495 

the  finding  of  the  court, 527  500 

final  commitment, 523  496 

granting  motion  for  rule,  etc.,      533  504 

indictm,ent . 

against  a  retail  liquor  dealer  selling  liquor,  for 

not  paying  special  license  tax, 494  475 

demanding  illegal  fees  of  pensioner  in  violation  of 
Revised  Statutes,  Section  5485,  as  amended  July 

4.  1884, 488  463 

embezzling  money  order  and  postal  funds,  .    .    .  483  453 

embezzlement  of  letters, 482  451 

falsely  personating  another  in  violation  of  R.  S., 

Section  5435, 485  45^ 

an  oflBcer  of  the  United  States, 486  458 

forging  indorsement  on  money  order, 490  466 

forgery — violation  of  R.  S.,  Sections  5414,  5421, 

and  5431, 489  465 

general  form  of  indictment, 471  419 

indictment  for  perjury, 491  467 


742  INDEX. 

Criminal  Proceedings — Continued.  form  page 
making  and  presenting  false  claim  for  pension, 

etc 487  460 

making  counterfeit  coin, 492  472 

mailing  libelous  postal  cards 477  444 

lottery  circulars, 476  442 

obscene  letter 479  447 

national  bank  officer  embezzling,  etc.,  funds,   .    .  473  422 

misapplication  of  funds  by, 472  420 

passing  counterfeit  money, 493  474 

robbing  post-ofl5ce, 480  448 

scheme  to  defraud — misuse  of  mails 475  438 

stealing  personal  property  of  the  United  States,  484  455 

taking  obscene  pamphlet  from  the  mail,    ....  478  446 

using  mails  concerning  scheme  to  defraud,   .    .    .  474  433 

violation  of  postal  laws, 481  450 

information,  admiralty, 498  478 

general  form 496  476 

libel  of — seizure  of  a  distillery, 499  478 

seizure  under  the  revenue  laws, 497  476 

joinder  to  demurrer 512  491 

to  a  demurrer  to  a  plea, 514  492 

motion  in  arrest  of  judgment,    .  • 521  495 

for  rule  against  jailer  to  show  cause,  etc.,     .    .    .  532  504 

to  quash  indictment, •  .    .    .  503  485 

oath  or  affirmation  of  foreman  of  grand  jury,     .    469  418 

or  affirmation  of  grand  jurors, 470  418 

petition  for  removal  of  a  criminal  case  from  a  state 

coiirt 495  475 

for  writ  of  habeas  corpus  ad  testificandum,    .    .    .516  493 

for  writ  of  habeas  corpus, 524  497 

plea  of  misnomer, 504  487 

replication  to  a, 506  487 

verification  of, \ 505  487 

nolo  contendere,  ]ovitxv2\  ^Vi.\.xy  ow., 515  492 

of  former  jeopardy  (acquittal), 510  490 

of  former  jeopardy  (conviction), 509  489 

special 507  488 

recognizance  for  appearance  before  the  court,      .    .501  483 


INDEX.  743 

Criminal  Proceedings — Continued.                           FORM  page 

replication  to  special  plea, 508  488 

rule  for  jailer  to  show  cause,  etc 534  505 

temporary  mitiimics,      502  484 

verdict,  guilty, 518  494 

guilty  to  part  of  the  counts  only, 519  495 

not  guilty, 520  495 

writ  of  habeas  corpus  ad  testificandum 517  494 

of  habeas  corpus, 526  500 

of  venire  for  grand  jury, 468  418 

Customs  Law  Case — 

declaration  in, 8  10 

judgment  in, 721  682 

petition  on  appeal, 722  683 

Declarations — 

at  law  in  copyright  case, 418  386 

at  law,  infringement  of  a  registered  trade-mark,    .    419  386 

by  an  alien  against  a  citizen  of  the  United  States,    .      5  8 

by  a  copartnership  against  a  copartnership,    ...      4  8 

by  a  corporation  against  a  corporation, 3  8 

by  an  individual  against  an  individual, 2  7 

by  the  United  States, 6  9 

for  infringement  of  a  patent, 408  361 

Decrees — 

annulling  former  decree  and  revoking  a  mandate,   .  677  628 

appointing  special  master, 274  225 

appellate  court,  in, 676  627 

dismissing  bill 268-260  221 

libel, 601  576 

.  framed  to  prevent  prejudice 679  629 

without  prejudice,  stating  reasons, 270  221 

final  (copyright  case), 433  390 

(patent  case), 409  360 

(trade-mark  case), 434,  435  391 

for  libellant, 602  576 

for  libellant  when  vessel  has  been  released  on  bond,  604  577 

for  salvage,      608  379 

for  sale  of  perishable  property, 610  580 

for  sale  of  vessel, 609  579 

for  wages 605  577 


744  INDEX. 

Decrees — Continued.                                                     form  page 
in  proceedings  for  limitation  of  liability  in  admi- 
ralty,       6ii  580 

in  rem  for  sale  of  vessel, 603  577 

on  mandate  in  admiralty,      633  597 

pro  confesso, 398  352 

pro  confesso, 606  678 

pro  confesso, 225  200 

pro  confesso  sustaining  patent, 226  201 

rescinding  contract  for  fraud, 271  222 

reversing  decree, 273  225 

sale, '  .    .    .    .  262  219 

specific  performance  of  agreement  for  policy  of  in- 
surance  272  224 

subjecting  absent  defendant's  property  to  payment 

of  judgment, 719  680 

sustaining  patent, 401  353 

to  a  libel  in  rem 607  578 

Dedimus  potestatem 38  25 

Demand  of  oyer, 17  14 

Depositions — 

certificate  at  close  of 260  218 

certificate  at  close  of  depositions  de  bene  esse,  ...    25  17 

commencement  for 259  217 

commencement  for  depositions  de  bene  esse,     ...    24  17 

notice  to  take 253-255  214 

notice  to  take  de  bene  esse, 22  16 

transmission  of, 26  18 

Demurrers — 

afi&davit  or  oath  to  a 133  146 

and  answer, 138  149 

certificate  of  counsel, 134  146 

conclusion  where  the  demurrer  is  to  part,  or  to  the 

relief, 131,  132  145 

for  multifariousness, 143  153 

for  want  of  equity, 136  147 

for  want  of  jurisdiction,  in  supreme  court,  ....  712  675 

for  want  of  parties, 142  153 

for  want  of  a  suggestion  that  the  evidence  of  the 

plaintiff 's  demand  is  not  in  his  power 140  152 


INDEX.  745 

Demurrers — Continued.                                                form  page 

introduction  to  a  demurrer  to  the  whole  of  the  bill  127  144 

on  the  ground  of  the  statute  of  frauds, 150  157 

patent  case, 349  323 

plea  and  answer, 139  150 

title  and  commencement, 122-126  143 

to  bill  omitting  several  grounds, 137  148 

to  a  demurrer  to  the  whole  of  the  bill,  .    .    .    .  129,  130  145 

to  a  bill  brought  for  part  of  a  matter  only,   ....  144  155 
to  a  bill   for  relief  filed  by  a  person    beneficially 
entitled  where   a   right. of  action  at  law  was  in 
a  trustee  suggesting  a  refusal  by  the  trustee  to 

suffer  an  action  to  be  brought  in  his  name,    .    .    .141  152 
to  a  bill  exhibited  by   an   infant   where    no   next 

friend  is  named, 148  157 

to  a  bill  of  interpleader  because  it  does  not  show 

any  claim  of  right  in  the  defendant, 145  155 

to  a  bill  of  interpleader  because  the  plaintiff  shows 
no  right  to  compel   the   defendants  (whatsoever 

rights  they  may  claim)  to  interplead, 146  156 

to  a  bill  of  interpleader  for  want  of  the  necessary 

affidavit, 147  156 

to  part  of  bill  only, 135  147 

to  bill  of  review, 153  159 

.    to  a  bill  of  review  and  supplemental  bill,  ....  152  158 

to  supplemental  bill, 151  158 

to  a  bill  where  the  plaintiff  claimed  under  a  will, 
and  it  was  apparent  on  the  face  of  the  bill  that 

he  had  no  title, 149  157 

to  an  indictment  or  information, 511  490 

to  a  plea  in  bar, 513  491 

to  part  of  the  bill,  or  to  the  relief, 128  144 

verification  of  demurrer 133  146 

Disclaimer, 217  196 

Discontinuance, 377  339 

Entry  discharging  jailer 536  507 

ordering  discharge  of  prisoner, 518  501 

of  distribution  upon  payment  of  fine, 522  495 

the  finding  of  the  court 627  500 


746  INDEX. 

Equity —  form     page 

afl&davit  of  service  of  notice, 256  216 

to  be  annexed  to  a  bill  of  interpleader,  ....  105-7     "3 

to  obtain  a  ne  exeat, 239  206 

amendment  to  answer, 236  204 

to  bill, 235  203 

answers  in  equity. 

accounts  (reference  to  book  containing  them),   .189  181 

refused,  as  being  useless,  before  decree,  ...  190  181 

admission  for  purposes  of  the  suit, 191  181 

of  an  executrix  submitting  to  act  under  the  in- 
demnity of  the  court, 207  187 

of  the  executors  of  a  deceased  acting  executor  to  a 

bill  of  revivor, 208  188 

of  a  widow  electing  to  take  the  bequests  made  to 
her  by  a  will,  and  to  release  all  interest  in  the 

devised  estates 209  190 

to  a  bill  charging  infringement  of  a  patent,  ...  210  191 
claim  of  benefit  of  same  defense  to  amended,  as 

to  original  bill, 206  187 

claims  made  by  defendant, 192  182 

craving  leave  for  greater  certainty, 193  183 

to  refer  to  codefendant's  answer, 194  183 

commencement  of, 176  177 

by  an  infant 178  177 

by  husband  and  wife, 179-80  177 

by  a  lunatic  or  idiot,  etc., 182  178 

by  wife  separately,  under  an  order 183  178 

where  the  bill  misstates  the  names  of  defendants,  181  178 
where  there  is  only  one  defendant  to  an  original 

bill, 177  177 

conclusion  of, 187  i8a 

first  paragraph  of, 184  179 

by  a  formal  party  who  is  a  stranger  to  the  facts,  185  179 

by  an  infant, 186  179 

information  and  belief, 195  183 

ignorance, 196  184 

qualified  denial, 197  184 

reference  to  schedule, 198  184 


INDEX.  747 

Equity — Continued.                                                     form  page 

release,  craving  some  benefit  as  if  pleaded,  ...  199  185 

settled  accounts,  claim  of, 200  185 

submission  by  trustees  to  act, 201  185 

traverse, 202  185 

trustee,  desire  to  be  discharged, 203  186 

vexatious  suit ;  settled  accounts  ;  claim  of  benefit 

of  defense,  as  if  raised  by  plea  or  demurrer,    .  204  186 

verification  of  answer, 188  180 

want  of  interest  in  plaintiff";  craving  some  benefit 

as  if  defense  by  demurrer, 205  186 

appearance, 222  199 

attachment  to  compel  answer, 228  201 

bills  in  equity. 

affidavit  to 85  53 

against  an  agent  for  mismanagement, 108  114 

an  executor  by  legatees  and  the  administrator  of 

a  deceased  legatee, 95  77 

by  husband  of  legatee  against  executor,    ....    93  72 
by  an  executor  and  trustee  under  a  will  to  carry 

the  trusts  thereof  into  execution, 96  80 

caption  and  address  of 67  45 

charging  part  of, 72  47 

commencement  of, 68  45 

by  other  than  an  individual 69  46 

confederating  part  of, 71  46 

creditor's  bill  against  a  corporation  and  its  stock- 
holders to  enforce  statutory  liability,  ....    87  56 
by   simple   contract,  creditors  against  executors 

of  deceased  debtor  for  payment  of  his  debts,  .    .  86  54 

for  dissolution  of  a  partnership, 88  60 

foreclosure  of  mortgage, 90  65 

for  an  account  of  partnership  dealings  after  a  dis- 
solution, and  for  a  receiver 89  63 

formal  parts  of  a  bill,  (see  below). 

interrogating  part  of, 74  48 

introduction  to 68,  69  45,  46 

jurisdiction  clause  of, 73  47 

oath  to, 85  53 

of  interpleader  (old  English  form), 103  109 


74^  INDEX. 

Equity — Continued.                                                         form  page 

of  review  for  new  matter, 119  135 

of  review  to  examine  and  reverse  a  decree,      .117  133 
of  revivor  and  supplement  where  both  parties  in 

original  bill  are  deceased, 116  131 

of  revivor  (before  decree)  by  the  administrator  of 

the  plaintiff  in  the  original  suit, 115  129 

on  behalf  of  infant  legatees, 94  74 

prayer  for  injunction  in 77  50 

for  the  production  of  deeds,  papers,  etc.,  in,    .    78  50 
for  process  where  the  government  is  a  defend- 
ant in, 81  52 

for  relief  in, 75,  76  49,  50 

for  subpoena  in, 79.  80  51 

for  writ  of  certiorari  in 83  52 

for  writ  of  ne  exeat  in, 82  52 

to  bill  of  interpleader, 194  112 

signature  of, 84  53 

stating  part  of,    .    .    .    , 70  46 

supplemental  bill no  119 

against  the  assignee  of  a  bankrupt  defendant,  .111  125 

in  a  patent  case, 113  127 

to  an  original  and  amended  bill  filed  by  a  les- 
see for  the  specific  performance  of  an  agree- 
ment to  grant  a  further  lease, II  126 

to  cancel  decree  of  naturalization, 10 1  103 

a  written  instrument,  (a  bill  of  exchange),   .    .    97  84 

to  enforce  a  lien  against  a  distillery, 102  108 

specific  performance  of  a  contract  to  make  a 

policy  of  insurance, 98  89 

to  enjoin  the  obstruction  of  a  river, 100  100 

to  have  goods  redelivered  which  have  been  de- 
posited as  a  security  for  money  lent, 91  68 

to  perpetuate  testimony, 114  127 

to  redeem  by  purchaser  of  an  equity  of  redemp- 
tion  from  the  assignee  in   insolvency   of  the 

mortgagor,       92  69 

to  reform  a  policy  of  insurance,      99  95 

to  set  aside  a  decree  obtained  by  fraud 121  139 

to  suspend  a  decree, 120  137 


INDEX.  749 

Equity — Co7itinu€d.                                                      form  page 

verification  to, 83  53 

bond  upon  a  ne  exeat, 242  207 

contempt  proceedings, 283  230 

cost  bill, 285  231 

cost  bond 221  199 

decrees  in  equity. 

dismissing  bill, 268-69  221 

of  dismissal  without  prejudice,  stating  reasons,   .270  221 
for  specific  performance  of  agreement  for  policy 

of  insurance, 272  224 

appointing  special  master, 274  225 

for  sale 262  219 

pro  confesso 225  200 

pro  confesso  sustaining  patent, 226  201 

rescinding  contract  for  fraud, 271  222 

demurrers  in  eqtiity. 

affidavit  or  oath  to  a 133  146 

and  answer, 138  149 

certificate  of  counsel, 134  146 

conclusion  where  the  demurrer  is  to  part,  or  to 

the  relief, 131,  132  145 

for  multifariousness, 143  153 

for  want  of  equity, 136  147 

for  want  of  jurisdiction  in  supreme  court,   ,    .    .712  675 

for  want  of  parties, 142  153 

for  want  of  a   suggestion  that  the   evidence  of 

the  plaintiff's  demand  is  not  in  his  power,  .    .    140  152 

introduction  to  a  demurrer  to  the  whole  of  the  bill  127  144 

on  the  ground  of  the  statute  of  frauds, 150  157 

patent  case, 349  323 

plea  and  answer, 139  15a 

title  and  commencement, 122-126  143 

to  bill  omitting  several  grounds, 137  148 

to  a  demurrer  to  the  whole  of  the  bill,  .    .    .129,  130  145 

to  a  bill  brought  for  gart  of  a  matter  only,   .    .    .  144  155 
to  a  bill  for  relief  filed  by  a  person  beneficially 
entitled  where  a  right  of  action  at  law  was  in 
a  trustee  suggesting  a  refusal  by  the  trustee  to 

suffer  an  action  to  be  brought  in  his  name,    .    .141  152 


750  INDEX. 

Equity — Continued.                                                       form  page 
to  a  bill  exhibited  by  an  infant  where  no  next 

friend  is  named 148  157 

to  a  bill  of  interpleader  because  it  does  not  show 

any  claim  of  right  in  the  defendant, 145  155 

to  a  bill  of  interpleader    because   the    plaintiff 
shows  no  right  to  compel  the  defendants  (what- 
soever rights  they  may  claim)  to  interplead,    .146  156 
to  a  bill  of  interpleader  for  want  of  the  necessary 

affidavit, 147  516 

to  part  of  bill  only, 135  147 

to  bill  of  review, 153  159 

to  a  bill  of  review  and  supplemental  bill,   ...  152  158 

to  supplemental  bill 151  158 

to  a  bill  where  the  plaintiff  claimed  under  a  will, 
and  it  was  apparent  on  the  face  of  the  bill  that 

he  had  no  title 149  157 

to  an  indictment  or  information 511  490 

to  a  plea  in  bar,  , 513  491 

to  part  of  the  bill,  or  to  the  relief, 128  144 

verification  of  demurrer 133  146 

depositions. 

certificate  at  close  of 260  218 

certificate  at  close  of  depositions  de  bene  esse^  .    .    25  17 

commencement  for 259  217 

commencement  for  depositions  de  bene  esse,     .    .    24  17 

notice  to  take 253-255  214 

notice  to  take  de  bene  esse, 22  16 

transmission  of 26  18 

exceptions. 

for  scandal 214  194 

taken  to  the  answer  of  a  defendant  to  an  amended 

bill 213  194 

to  answer  for  insufficiency, 211,212  192 

to  libel, 216  195 

to  master's  report, 215  195 

final  record  in  equity 286  231 

injunction  pendente  lite, 229  202 

letters  rogatory, 246,  247  209-10 

marshal's  appraisement  of  real  estate, 263  219 


INDEX.  751 

£quity — Continued.                                                      form  page 

marshal's  report  of  sale, 264  219 

master. 

decree  appointing  master, 274  225 

exceptions  to  master's  report, 280  229 

final  decree  on  master's  report, 281  229 

interrogatories  for  examination  before  a  master,  277  227 

master's  report, 278  227 

notice  accompanying  draft  of  master's  report,   .  279  228 

for  proceedings  before  master, 276  226 

oath  of  special  master, 275  226 

reference  to  a  master  in  special  cases, 282  230 

motion  for  additional  security  for  costs, 220  199 

for  leave  to  file  an  amendment, 234  203 

to  retax  costs, 284  230 

notice  of  application  for  trial 265  219 

of  deposition  under  revised  statutes, 254  215 

of  final  hearing, 266  220 

of  motion  for  appointment  of  special  examiner,  .251  231 

of  motion  for  discharge  of  ne  exeat, 243  208 

of  oral  examination 253  214 

to  assign  time  within  which  parties  shall  take 

evidence, 244  208 

to  take  depositions  under  67th  rule  in  equity,  .    .  255  216 

order  appointing  special  examiner, 252  214 

assigning  time  within  which  to  take  testimony,  .  245  208 

extending  the  time  for  taking  testimony,  .    .    .  250  213 

for  attachment  to  compel  answer 227  201 

for  dedimus  potestatem,      248  210 

for  writ  of  ne  exeat  to  issue, 240  206 

to  show  cause  why  the  time  for  taking  testimou}'^ 

should  not  be  extended, 249  213 

to  stand  over  to  add  new  parties, 232  203 

to  stand  over  to  supply  proofs, 233  203 

petition  by  infant  for  appointment  of  guardian  ad 

litem, 237  204 

by  plaintiff  for  appointment  of  guardian  ad  litem 

for  an  infant  defendant, 238  205 

for  leave  to  file  a  bill  of  review  for  new  matter,  .118  134 

for  leave  to  file  a  supplemental  bill 109  1 19 


752  f  INDEX. 

Equity — Continued.                                                        FORM  page 
pleas  in  equity, 

afl&davit  or  oath  to  a  plea, 157  161 

certificate  of  counsel, 158  161 

commencement  of  a  plea 155  160 

conclusion  of  a  plea, 156  160 

plea  of  an  award, 168  168 

circumstances  bringing  a  case  within  the  protec- 
tion of  a  statute,  viz. :  the  statute  of  limitations, 

or  the  statute  of  frauds, 169  169 

of  former  suit  depending 164  164. 

of  infancy  to  a  bill  exhibited  without  a  prochein 

ami, 159  161 

of  purchase  for  a  valuable  consideration  without 

notice 170  171 

of  lunacy, 160  162 

of  stated  account, 165  165 

of  want  of  interest  of  defendant, 166  166 

of  want  of  proper  parties 171  173 

of  a  will, 167  167 

that  the  defendant  never  was  administrator,    .    .  162  163 
that  the  discovery  sought  by  the  bill  would  betray 
the  confidence  reposed  in  the  defendant  as  an 

attorney,      172  174 

that  the  supposed  intestate  is  living,  to  a  bill 
where  the  plaintiflf  entitled  himself  as  adminis- 
trator   161  162 

to  a  bill  of  revivor, 173  175 

to  the  jurisdiction, 163  163 

to  part,  and  answer  to  residue  of  bill,    .....  175  176 

to  supplemental  bill 174  176 

the  title 154  160 

verification  of  plea, 157  161 

prayer  of  bill  of  interpleader, 104  112 

precipe  for  copy 231  202 

pro  confesso,  consent  to  take  bill, 224  200 

decree 225  200 

order  to  take  bill 223  199 

preliminary  injunction, ....229  202 

record  in  equity, 386  231 


INDEX.  753 

Equity — Continued.                                                        form  page 

replication,      218  197 

stipulation  to  submit  cause  on  printed  briefs,   .    .    .  267  220 

subpoena  duces  tecum, 258  217 

in  chancery, 219  199 

to  testify  before  an  examiner, 257  217 

temporary  injunction, 229  202 

writ  of  attachment  to  compel  answer, 228  201 

in  equity, 230  202 

of  ne  exeat, 241  207 

Entry  discontinuing  case, 377  339 

Exceptions — 

for  scandal 214  194 

taken  to  the  answer  of  a  defendant  to  an  amended 

bill 213  194 

to  answer 366  338 

to  answer  for  insuflBciency 211,  212  192 

to  libel 216  195 

to  master's  report, 215  195 

to  commissioner's  report  in  admiralty, 616  586 

to  a  libel, 583  502 

to  a  libel  pre-emptory, 584  563 

Extradition — 

bench  warrant  for  removal  (R.  S.,  Sec.  1014),  .    .    .  466  414 

certificate  of  extradition  proceedings, 436  412 

complaint  for  warrant, 460  410 

final  commitment,       462  412 

proceedings  where  offender  is  arrested  in  one  state 
for  offense  committed  in  another  state.     Before 

indictment,      464  413 

after  indictment, 465 

warrant, 461  411 

Fee  bill  of  commissioner,      467  416 

Fiere  Facias, 47  32 

Final  commitment, 523  496 

in  extradition, 462  412 

tnittimus,      444  398 

recognizance  for  appearance  before  circuit  or  dis- 
trict court, 442  396 


754  INDEX. 

Habeas  Corpus —                                                       form  page 

affidavit  of  petitioner, 525  499 

appeal  to  the  circuit  court  of  appeals 529  501 

entry  allowing  appeal 531  503 

finding  of  the  court,      527  500 

order  discharging  prisoner,      528  561 

petition  of  assignment  of  errors  on  appeal,   ....  530  502 

for  writ  of  habeas  corpus, 524  497 

writ  of  habeas  corpus, 526  500 

Habeas  corpus  ad  testificandum, 21  15 

Indictments — 

against   a  retail   liquor   dealer  selling   liquor,   for 

not  paying  special  license  tax, 494  475 

demanding  illegal  fees  of  pensioner  in  violation  of 

Revised  Statutes,  Section  5485,  as  amended  July 

4,  1884 488  463 

embezzling  money  order  and  postal  funds,  ....  483  453 

embezzlement  of  letters, 482  451 

falsely  personating  another  in  violation  of  R.  S., 

Section  5435, 485  456 

an  officer  of  the  United  States, 486  458 

forging  indorsement  on  money  order, 490  466 

forgery — violation   of  R.  S.,  Sections   5414,  5421, 

and  5431, 489  465 

general  form  of  indictment, 471  419 

for  perjury, 491  467 

making  and  presenting  false  claim  for  pension,  etc.,  487  460 

making  counterfeit  coin, 492  472 

mailing  libelous  postal  cards, 477  444 

lottery  circulars, 476  442 

obscene  letter, 479  447 

national  bank  officer  embezzling,  etc.,  funds,   .    .    .  473  422 

passing  counterfeit  money, 493  474 

robbing  post-office, 480  448 

scheme    to    defraud — misuse   of    mails    (insurance 

company), 475  438 

stealing  personal  property  of  the  United  States,    .  484  455 

takmg  obscene  pamphlet  from  the  mail, 478  446 

using  mails  concerning  scheme  to  defraud,  ....  474  433 

violation  of  postal  laws, 481  450 


INDEX.  755 

Injunction.   {See  "  Per pettrnP'  and  "Preliminary")   form  page 

bond, 63  42 

in  patent  cases, 64  43 

pendente  lite, 229  202 

Information  (criminal), 496  476 

admiralty, 498  478 

libel  of — seizure  of  a  distillery, 490  478 

seizure  under  the  revenue  laws, 497  476 

Joinder  in  error, 660  617 

to  demurrer, 

to  a  demurrer  to  a  plea, 514  492 

Judgment,      670  624 

in  customs  law  case, 721  682 

error  to  state  court  ,  .    .    . 665  621 

Justification  of  sureties  (admiralty), 590  567 

on  a  bond, 36  23 

L>aw,  suit  at — 

answer, 7  9 

appearance,     .    , 11  12 

by  defendant  in  person, 13  12 

for  special  pleading, 12  12 

application   for   review   and   reversal  of   decisions 
of   the   board   of  general   appraisers   under  the 

customs  law, 8  10 

caption, 2  7 

for  depositions  de  bene  esse, 24  17 

certificate  at  close  of  depositions, 25  17 

complaint 2-7  9 

cost  bill 28  20 

declaration   by  an   alien  against  a  citizen  of  the 

United  States, 5  8 

by  a  copartnership  against  a  copartnership,    .    .      4  8 

by  a  corporation  against  a  corporation,    ....      3  8 

by  an  individual  against  an  individual,    ....      2  7 

for  an  infringement  of  a  copyright  or  trademark,    10  12 

for  infringement  of  a  patent, 408  361 

by  the  United  States, 6  9 

demand  of  oyer, 17  14 

depositions, 24  17 

habeas  corpus  ad  testificandum, 21  15 


756  INDEX. 

Law,  suit  at — Continued.  form     pagb 

notice  to  declare, 15  13 

for  examination  of  witness  de  bene  esse,    ....  22  16 

of  motion  for  leave  to  amend 16  13 

to  plead 14  13 

to  reply, 18  14. 

of  taxation  of  costs, 27  19 

of  trial, 19  15 

petitions, 2-7  7 

pleadings  in  suits  at  law, 7  9 

subpoena  of  witness  de  bene  esse, 23  16 

of  witness  to  testify  before  a  commissioner,    .    .  20  15 

transmission  of  the  depositions,      26  18 

writs  in  law  and  equity. 

attachment  bond,      50  34 

capias  ad  respondendum, 34  23 

citation  to  appellee, 59  40 

to  defendant  in  error, 60  41 

cost  bond, 36  23 

dedimus  potestatem, 38  25 

fieri  facias 74  32 

injunction  bond 63  42 

in  patent  cases, 64  43 

marshal's  appraisement  of  real  estate, 45  29 

report  of  sale  of  real  estate, 46  31 

notice  to  surety, 37  24 

order  for  sale, 44  29 

for  delivery  of  personal  property 42  28 

recognizance  for  appearance,       35  23 

return  of  writ  by  marshal 32  22 

of  order  for  the  delivery  of  personal  property,  .  43  28 

rule  to  show  cause, 49  34 

scire  facias  to  revive  a  judgment 53  36 

subpoena  duces  tecum, 40  26 

for  witness 39  26 

in  chancery, 33  22 

summons  at  law, 29  21 

teste  for  writs  issuing  from  a  district  court,  ...  30  21 

for  writs  issuing  from  the  supreme  court,  a  cir- 
cuit court  of  appeal,  or  a  circuit  court,  ...  31  22 


INDEX.  757 

Law^,  suit  at — Continued.  FORM     page 

undertaking  in  attachment, 50  34 

vendi  exponas, 48  33 

writ  of  assistance,      57  38 

of  attachment, 51  .     35 

of  attachment  against  witness  for  disobeying 

subpoena, 41  27 

in  admiralty, 55  37 

of  certiorari, 65  43 

of  attachment  for  contempt, 52  36 

of  error  to  the  U.  S.  supreme  court, 58  39 

of  injunction, 61  41 

of  injunction  in  patent  cases 62  42 

of  ne  exeat  republica, 66  43 

of  possession, 57  38 

of  seizure 54  37 

of  venire  for  jury, •  ....    56  38 

Letters  rogatory, 246,247  209-10 

Libels — 
against  consignee  for  freight  on  a  bill  of  lading,    .  564  540 
against  master  for  assault  and  beating  or  imprison- 
ment,      567  543 

against  merchandise  for  possession, 550  520 

against  vessel  for  repairs, 538  509 

against  owner  for  wages,      563  540 

by  mariner  for  wages, 539  510 

by  mariner  for  wages  after  ship  has  left  port,  .    .    .  542  513 

by  mariner  for  wages  without  written  contract,  .    .541  512 

for  wages  on  a  boat  on  navigable  rivers  and  lakes,  544  514 

for  wages  on  discharge  before  beginning  voyage,  .  543  513 

by  insurers  for  loss  by  collision, 555  531 

by  a  part  owner  against  his  partner  for  security  for 

building  of  a  ship,      560  538 

for  damage  by  collision, 554  528 

for  lockage  in  a  public  navigable  river, 566  542 

for  pilotage  in  extraordinary  danger, 547  5 1 7 

for  pilotage  under  state  regulations, 546  516 

for  pilotage  to  sea 545  215 

for  salvage,      552  523 

for  supplies 561  539 


758  INDEX. 

Libels — Continued.                                                        form  page 

for  supplies  with  attachment  clause,  ......  562  539 

for  the  nonfulfillment  of  a  contract  for  transporta- 
tion of  goods, 549  519 

for  wharfage  {in  rem), 548  518 

for  wharfage  {in  personam) , 565  541 

general  form  of  libel  of  information 571  547 

in  rem, 537  508 

of  libel  in  rem  and  personam, 569  545 

in  personam, 556  535 

with  prayer  for  attachment  of  goods,  etc.,    .    .557  536 

with  prayer  for  monition, 558  537 

interrogatory  clause  in  prayer, 559  537 

intervening  libel, 570  546 

on  a  bottomry  bond  against  the   vessel,  freight 

and  cargo, 553  526 

to  enforce  decree  of  court  of  admiralty  of  another 

district, 568  544 

schedule  to  be  attached  to  libel  for  wages,  .    .    .  540  5 1 2 

Mandate, 605,  696  637 

in  admiralty, 632  596 

to  jailer  to  produce  prisoner,   .    .     • 457  407 

Marshal's  blanks — 

account  current  of  U.  S.  marshal 765  718 

afl&davit  of   salaried  ofl&cer  of  the  government  for 

actual  expenses, 769  724 

bond  of  deputy  marshal, 759  714 

certificate  of  wages  of  guard  of  prisoner,  ....  764  718 

as  to  executions, 757  713 

claim  of  juror  for  fees, 755  711 

commission  of  deputy  marshal, 758  713 

deputy  marshal's   report   in  criminal    case   before 

United  States  commissioner 766  719 

deputy  marshal's  report  to  the  United  States  mar- 
shal   767  720 

notice  to  appear  as  witness, 752  709 

oath  of  special  deputy  marshal, 760  715 

of  supervisor  of  elections 761  715 

order  to  pay  witness  fees  (pay  roll), 756  712 

return  of  marshal  of  service  of  subpoena,    ....  753  710 


INDEX.  759 

Marshal's  blanks — Continued.                                    form  page 

schedule  of  fees, 763  716 

of  fees  for  deputy  marshals, 768  722 

summons  for  jurors, 754  710 

voucher  and  receipt  for  bailifiF 's  criers,  etc.,  fees,   .  762  716 

for  fees  and   expenses  of  deputy  marshal,  .    .    .  770  725 

Marshal's  appraisement  of  real  estate, 45  29 

report  of  sale  of  real  estate, 46  31 

Marshal's  return  of  certiorari,    .    : 654  612 

Master — 

decree  appointing  master 274  225 

exceptions  to  master's  report 280  229 

final  decree  on  master's  report, 281  229 

interrogatories  for  examination  before  a  master,     .  277  227 

master's  report, 278  227 

notice  accompanying  draft  of  master's  report,     .    .  279  228 

for  proceedings  before  master, 276  226 

oath  of  special  master,      275  226 

reference  to  a  master  in  special  cases, 282  230 

report  in  patent  case, 404-406  355 

Monition  and  attachment,      598  572 

Motion  for  additional  security  for  costs, 220  199 

for  leave  to  file  an  amendment, 234  203 

for  rule  against  jailer  to  show  cause,  etc.,      ....  522  504 

in  arrest  of  judgment 521  495 

service  by  publication, 716  678 

to  dismiss 687  633 

to  dismiss  for  want  of  jurisdiction, 711  674 

to  dismiss  or  afl&rm, 688  633 

to  set  aside  decree  pro  confesso  in  a  patent  case,  .    .370  353 

to  quash  indictment, 503  485 

to  remand, 651  610 

to  retax  costs, ^    .......    .  284  230 

N  aturalization — 

affidavit  for  certificate  of  naturalization, 750  707 

for  first  papers, 748  705 

certificate  of  naturalization  (final  papers),     .    .     .751  708 

naturalization  of   an  alien  under  eighteen  years,  747  704 

declaration  of  alien  under  eighteen  years,  ....  746  703 

of  intention  (first  papers), 749  706 


760  INDEX. 

FORM  PAGE 

Notice  for  examination  of  witness  de  bene  esse,     .    .     22  16 

for  publication  in  admiralty 624  591 

for  publication  in  equity, 718  679 

of  appeal  in  admiralty, 629  594 

of   application   for   removal    on   account  of   local 

prejudice, 642  604 

of  application  for  trial,      265  219 

of  deposition  under  revised  statutes, 454  215 

of  appraisement, 620  588 

of  final  hearing, 266  220 

of  motion, 625  592 

of  motion  for  appointment  of  special  examiner,    .251  231 

of  motion  for  discharge  of  ne  exeat, 243  208 

of  motion  for  leave  to  amend 16  13 

of  motion  to  remand, 650  610 

of  oral  examination 253  214 

of  removal, 641  603 

of  submission  of  motions, 686  632 

of  taxation  of  costs,  . 27  19 

of  trial, 19  15 

to  appraisers, 618  587 

to  assign  time  within  which  parties  shall  take  evi- 
dence, .    .    • 244  208 

to  declare, 15  13 

to  plead 14  13 

to  surety, 37  24 

to  take  depositions  under  67th  rule  in  equity,      .    .255  216 

to  reply, 18  14 

Oath  and  approval  of  bond  on  removal, 638  602 

by  corporation  to  a  libel  or  answer 586  564 

by  proctor  to  a  libel  or  answer, 588  565 

of  foreman  of  grand  jury 469  418 

of  grand  jurors, 470  418 

of  agent  or  attorney  in  fact  to  a  libel  or  answer,    .  587  564 

of  appraisers, 619  587 

to  libel  or  answer 586  563 

Orders, 714  676 

and  decree  where  the  court  has  no  jurisdiction,  .    .  678  628 

allowing  writ  of  error, 661  617 

appointing  appraisers, 617  587 


INDEX.  761 

Orders — Continued.                                                      form  page 

appointing  special  examiner, 252  214 

assigning  time  within  which  to  take  testimony,  .    .  245  208 

dismissing  cause  for  failure  to  print, 69 1  635 

dismissing  cause  under  rule, 602  635 

dismissing  cause  on  motion  filed, 689  634 

dismissing  cause  on  call, 690  634 

extending  the  time  for  taking  testimony, 250  213 

for  attachment  to  compel  answer, 227  201 

ior  &&creQ  pro  confesso, 397  352 

for  dedimus  potestatem, 248  210 

for  delivery  of  personal  property, 42  28 

for  mandate  in  admiralty, 631  595 

for  removal, 640  603 

for  removal  on  the  ground  of  local  prejudice,  .    .    .  644  606 

for  sale, 44  29 

for  service  by  publication 717  279 

for  transfer  to  trustee 622  588 

for  writ  of  ne  exeat  to  issue, 240  206 

granting  leave   to  amend  answer  and  set  up.  addi- 
tional defenses 370  338 

granting  permission  to  intervene  and  defend,  .    .    .  348  322 

of  court  on  the  return  of  mesne  process  in  rem,  .    .612  584 

of  distribution, 720  681 

of  poor  convict,      458  408 

on  petition  for  writ  of  certiorari, 699  654 

remanding  cause, 652  610 

to  pay  witness 449  401 

to  show  cause  why  the  time  for  taking  testimony 

should  not  be  extended 249  213 

to  stand  over  to  add  new  parties, 232  203 

to  stand  over  to  supply  new  proofs, 233  203 

Patents. 

appearance, 368  338 

amendment, 369  338 

answers. 

general  form, 354  330 

alleging  imperfect  specification 356  333 

abandonment 363  336 

defective  specification, 357  334 


763  INDEX. 

Patents — Continued.                                                      form  page 

invention  by  another  person, 364  336 

limitation  of  claims  of  patent  by  proceedings  in 

the  patent  office, 360  335 

limitation  of  duration  of  patent  by  a  prior  for- 
eign patent, 365  336 

denying  assignee's  right  to  sue 355  333 

grant  of  licenses  and  public  acquiescence,    .    .361  335 

plaintiflf's  title, 362  336 

prior  adjudication, 359  334 

utility, 358  334 

bills  of  complaint. 

bill  in  equity  for  infringement  of  a  patent,  .    .    .  339  307 
in  the  nature  of  a  supplemental  bill.   Allegation 

when  patent  has  been  assigned  pending  suit,  344  313 

setting  forth  prior  adjudication, 343  312 

to  cancel  an  interfering  patent, 346  314 

to  compel  issue  of  patent, 346  317 

where  an  assignment  of  the  patent  has  been  made 

before  bringing  the  suit 340  311 

where  a  reissued  patent  is  sued  upon, 341  3 1 2 

where  the  suit  is  brought  by  the  administrator  of 

a  patentee, 342  312 

contempt. 

entry  of  distribution, 396  354 

motion  for  rule  to  show  cause,  etc.,  for  contempt,  389  347 

order  granting  motion  for  contempt, 390  348 

adjudging   defendant    guilty  of  contempt  and 

fining  him,      393  349 

adjudging  party  guilty  of    contempt  (another 

form), 394  349 

fining  defendant  for  contempt 395  350 

return  of  rule  by  marshal, 392  348 

rule  to  show  cause, 391  348 

cost  bill 375  339 

decree,  final 407  360 

dismissing  bill 400  353 

pro  confesso 398  352 

sustaining  patent 401  353 

demurrer, 349  323 


INDEX.  765 

Patents — Continued.           ,                                           form  page 

depositions, 373  339 

de  bene  esse 374  339 

-    entry  discontinuing  case 377  339 

exceptions  to  answer, 366  338 

'ya^\x\XQ.\\ow. pendente  lite.     {See  "Preliminary  Injunc- 
tion:') 
law,  suits  at. 

declaration  for  infringement  after  expiration  of 

patent,      408  361 

plea.   General  issue, • 410  363. 

and  notices  of  special  matter, 411  365 

replication, 412  366 

verification  to  declaration, 409  363 

limiting  the  time  within  which  to  take  evidence,     .  372  339 

master, 403  355 

master's  report 404,  406  355 

motion  to  set  aside  decree  pro  confesso, 399  353 

order  for  decree  pro  confesso, • 397  352 

granting  leave  to  amend  answer  and  set  up  addi- 
tional defenses, 370  338 

granting  permission  to  intervene  and  defend,  .    .  348  322 
petition  of  manufacturer  to  intervene  and  defend 

its  vendee, 347  320 

perpetual  injunction,      402  355 

plea  setting  up  the   defense   of  a  license  and  set- 
tlement of  a  prior  suit 352  326 

setting  up  defense  of  prior  suit, 351  320 

setting  up  defense  of  license  from  patentee,     .    .  350  324 

to  jurisdiction, 353  329 

preliminary  injunction. 

affidavit  of  service  of  notice, 379  340 

bond  in  lieu  of  preliminary  injunction,     ....  385  344 

motion  to  dissolve  preliminary  injunction,   .    .    .186  345 

notice  of  motion  for  preliminary  injunction,  .    .  878  339 

order  for  preliminary  injunction 382  341 

granting  motion  to  dissolve  injunction  and  sub- 
stituting bond  for  injunction 388  345 

overruling  motion, 380  341 

overruling  motion  to  dissolve, 387  345 


764  INDEX. 

Patents — Continued.                                                      form  page 
to  show  cause  why  injunction  should  not  issue, 

etc., 381  841 

refusing  injunction  upon  defendant  giving  bond,  384  343 

preliminary  injunction, 483  342 

replication,      367  338 

security  for  costs, 371  338 

stipulation  to  submit  cause  on  brief, 376  339 

temporary  injunction.     {See  "Preliminary  Injunc- 
tionr) 

Perpetual  injunction, 402  353 

Petition  against  proceeds  in  the  registry, 574  554 

against  proceeds  in  the  registry  against  the  claimant,  575  555 

appeal, 671  625 

appeal  in  admiralty, 630  594 

at  law, 2-7  7 

by  infant  for  appointment  of  guardian  ad  litem,  .    .  237  204 
by  plaintiff  for  appointment  of  guardian  ad  litem 

for  an  infant  defendant 238  205 

for  limitation  of  liability, 572  548 

for  leave  to  file  a  bill  of  review  for  new  matter,  .    .  118  134 

for  leave  to  file  a  supplemental  bill, 109  119 

manufacturer  to  intervene  and  defend  vendee,    .    .  347  320 

removal  because  of  the  subject-matter  of  the  suit,  636  600 
by  one  or  more  of  several  defendants  when  there 

is  a  separable  controversy, 637  600 

on  account  of  local  prejudice, 643  604 

on  the  ground  of  citizenship 634  598 

by  revenue  officer  in  a  civil  action, 647  608 

by  revenue  officer  indicted  for  murder,     ....  645  606 

of  criminal  case  from  a  state  court, 495  475 

to  bring  in  vessel  under  rule  59, 573  553 

writ  of  certiorari  to  circuit  court  of  appeals,   .    .    .  697  640 

of  error 657  614 

oi  habeas  corpus  ad  testificandum,, 516  493 

of  habeas  corpus, 524  497 

of  prohibition 705  661 

Pleas- 
affidavit  or  oath  to  a  plea, 157  161 

certificate  of  counsel 158  161 


INDEX.  765 

Pleas — Continued.                                                        form  page 
circumstances  bringing  a  case  within  the  protec- 
tion of  a  statute,  viz.:  the  statute  of  limitations, 

or  the  statute  of  frauds, 169  169 

commencement  of  a  plea, 155  160 

conclusion  of  a  plea 156  160 

general  issue  in  a  patent  case, 410  363 

and  notices  of  special  matter  in  patent  case,    .    .411  363 

in  supreme  court 713  675 

nolo  contendere,  Yy\xxx\.z\.QXi\xy  on, 515  492 

of  an  award, 168  168 

of  a  will 167  167 

of  former  jeopardy  (acquittal), 510  490 

of  former  jeopardy  (conviction), 509  489 

of  former  suit  depending, 164  164 

of  infancy  to  a  bill  exhibited  without  a  prochein 

ami 159  161 

of  lunacy, 160  162 

of  misnomer, 504  487 

of  purchase  for  a  valuable   consideration   without 

notice, 170  171 

of  stated  account, •     ....  165  165 

of  want  of  interCvSt  of  defendant, 166  166 

of  want  of  proper  parties, 171  1 75 

replication  to  a, 506  487 

setting  up  the  defense  of  a  license  and  settlement  of 

a  prior  suit, 352  326 

setting  up  defense  of  a  prior  suit 351  320 

setting  up  defense  of  license  from  patentee,     .    .    .  350  324 

special, 507  488 

that  the  defendant  never  was  administrator,    ...  162  163 
that  the  discovery  sought  by  the  bill  would  betray 
the  confidence  reposed  in  the  defendant  as  an  at- 
torney,       172  174 

that  the  supposed  intestate  is  living,  to  a  bill  where 

the  plaintiff"  entitled  himself  as  administrator,      .161  162 

to  a  bill  of  revivor, 173  175 

to  the  jurisdiction, 163  163 

to  part,  and  answer  to  residue  of  bill, 175  176 

to  supplemental  bill,    .    .    .    : 174  176 


766  INDEX. 

Pleas — Continued.                                                           form  page 

the  title, 154  160 

verification  of  plea, 157  161 

verification  of, 505  487 

Pleadings  in  suits  at  law, 7  9 

Poor  convict — 

application  for  discharge,      456  407 

certificate  of  discharge, 459  409 

mandate  to  jailer  to  produce  prisoner, 457  407 

oath  of, 458  408 

Precipe  for  copy, 231  202 

Preliminary  injunction — 

affidavit  of  service  of  notice, 379  340 

bond  in  lieu  of  preliminary  injunction 385  344 

motion  to  dissolve  preliminary  injunction,   ....  386  345 

notice  of  motion  for  preliminary  injunction,    .    .    .  378  339 

order  for  preliminary  injunction, 382  341 

granting  motion  to  dissolve  injunction  and  sub- 
stituting bond  for  injunction, 388  345 

overruling  motion, 380  341 

overruling  motion  to  dissolve,     .    . 387  345 

to  show  cause  why  injunction  should  not  issue, 

etc 381  341 

refusing  injunction  upon  defendant  giving  bond,   .  384  343 

preliminary  injunction, 383  342 

Preliminary  summons  for  seamen's  wages,     .    .    .  627  593 

Proclamation  on  the  return  of  process  in  rem,     .    .613  584 

Pro  confess©,  consent  to  take  bill 224  200 

decree, 225  200 

order  to  take  bill, 223  199 

Quarterly  statement  of  receiver, 306  255 

Receipt  for  record 683  631 

Receivers. 

ancillary  proceedings. 

affidavit  to  petition, 326  288 

bill,  ancillary,  for  foreclosure  of  railway,   .    .    .    .317  277 
in  re  receivers  for  a  manufacturing  company 
where  receivers  were  appointed  by  a  state 

court  before  a  federal  court  took  jurisdiction,  316  270 

supplemental  for  foreclosure  of  railway,  .    .    .318  278 


INDEX.  767 

Receivers — Continued.                                                  form  page 

certified  proceedings  before  magistrate 328  291 

commissioner's  report  on  intervention,     ....  334  300 

decree,      337  303 

taking  ancillary  jurisdiction, 319  280 

confirming  master  commissioner's  report  on  in- 
tervention,   335  302 

master's  report  on  intervention, 334  300 

motion  to  refer  intervention  to  special  master,  .  329  293 
to  restrain  receivers  in  accordance  with  peti- 
tion,        333  300 

notice  of  petition, 324  286 

oath  of  special  master  commissioner, 321  284 

to  petition, 326  288 

order  appointing  commissioner  to  hear  and  report 

claims,    .    .     .    .  • 320  283 

ancillary,  confirming  and  directing  sale  to  a  re- 
organized manufacturing  company,    ....  338  304 

granting  leave  to  intervene, 331  298 

that  receivers  give  notice  to  stockholders  by 

publication, 323  285 

to  file  amendment,  and  extending  receivership,  322  284 
petition  for  an  order  authorizing  receivers  to  de- 
liver possession  of  railway  property,  ....  336  302 
for  order  limiting  time  to  present  claims,  etc.,  .  325  286 

of  intervention, 327  289 

of  intervention  (another  form), 330  293 

of  intervention  {in  re  manufacturing  company),  332  299 

verification  of  petition, 326  288 

original  proceedings. 

acknowledgment  to  assignment  by  receiver,      .    .313  268 

affidavit  of  insolvency  in  support  of  bill,    ....  290  239 

appearance  and  answer, 291  241 

assignment  by  railway  receivers  of  choses  in  ac- 
tion, etc.,  on  the  surrender  of  the  property,  .  312  266 
advertisement  of  railway  foreclosure  sale,     .    .    .314  269 
bill  by  creditor  praying  the  appointment  of  a  re- 
ceiver,    287  233 

for  an  account  of  partnership  dealings  and  dis- 
solution, and  for  a  receiver, 289  239 


768  INDEX. 

Receivers — Continued.                                                  form  page 
for  the  foreclosure  of  a  railway,  and  appointment 

of  receiver, 288  239 

bond  of  receivers, 295  245 

certificate  of  special  master  to   statement  of  re- 
ceiver,    307  256 

decree  of  foreclosure  and  sale  of  a  railway,     .    .315  269 

oath  of  receiver, 294  245 

order  appointing   receiver  for  a  manufacturing 

corporation, 293  243 

appointing  receiver  for  a  railway, 292  241 

appointing  special  master  commissioner  to  hear 

and  report  claims 304  253 

authorizing  receiver  to  settle  traffic  balances,  .  301  251 
discharging    railway   receivers    and    restoring 

property, 311  259 

granting  leave  to  sue  receiver 309  259 

to  pay  claims  accruing  prior  to  the  appointment 

of  the  receiver, 305  254 

to  pay  rent 302  251 

requiring  defendant  to  turn  over  to  receivers 

books,  plats,  and  deeds 299  248 

that  receivers  give  notice  to  stockholders  by 

publication 296  246 

petition  by  receiver  for  authority  to  settle  traffic 

balance 300  249 

for  order  limiting  time  to  present  claims,  etc.,   297  246 
for  order  upon  a  defendant  to  deliver  to  the 
receivers  the  deed,  records,  plats,  and  other 

muniments  of  title, 298  246 

for  permission  to  make  a  receiver  party  to  a 

suit  in  a  state  court, 308  256 

intervening 310  259 

of  receiver  for  permission  to  defend  suits  and 

compromise  claims, 303  252 

quarterly  statement  of  receiver, 306  255 

Recognizance  for  appearance 35  23 

for  appearance  before  the  court, 501  483 

of  witnesses, 446  399 

Release  of  sureties, 441  396 


INDEX.  769 

Removal  from  State  Courts —                                form  page 

bond  on  removal, 638  601 

certificate  of  counsel, 649  609 

certiorari  for  removal  of  a  cause  from  a  state  court,  653  61 1 

marshal's  return  of  certiorari 654  612 

motion  to  remand, 651  610 

notice  of  application  for  removal  on  account  of  local 

prejudice 642  604 

of  motion  to  remand, 650  610 

of  removal, 641  603 

oath  and  approval  of  bond, 639  602 

order  for  removal, 640  603 

for  removal  on  the  ground  of  local  prejudice,  .    .  644  606 

remanding  cause, 652  610 

petition  for  removal  because  of  the  subject-matter  of 

the  suit, 636  600 

for  removal  by  one  or  more  of  several  defendants 

when  there  is  a  separable  controversy 637  600 

for  removal  on  account  of  local  prejudice,    .    .    .  643  604 

for  removal  on  the  ground  of  citizenship,     .    .    .  634  598 

of  removal  by  revenue  ofl&cer  in  a  civil  action,    .  647  608 

of  removal  by  revenue  ofl&cer  indicted  for  murder,  645  606 

return  of  certiorari  hy  the  state  court, 655  612 

verification  of  petition, 635  599 

of  petition  of  removal  by  revenue  oflScers  in  civil 

case, 648  669 

of  petition  of  removal  by  revenue  oflficers  in  crim- 
inal case, 646  608 

Rogatory  letters, 246,  247  209 

Replication  at  law, 412  366 

general  form 218  197 

to  claim  and  answer,      614  584 

to  special  plea 508  488 

Report  of  appraisers, 621  588 

Return  by  clerk  of  writ  of  error, 666  621 

by  marshal  of  mittimus 445  3^7 

of  certiorari  to  the  state  court, 655  612 

of  order  for  the  delivery  of  personal  property,    .    .    43  28 

of  service  or  subpoena  on  a  state 704  660 

of  writ  by  marshal, 32  22 


404 
405 


^^O  INDEX. 

FORM  PAGE 

Rule  for  jailer  to  show  cause,  etc., 534  505 

to  show  cause 49  3^^ 

to  show  cause  why  writ  of  prohibition  should  not 

issue 708  673 

Scire  facias  to  revive  a  judgment, 53  36 

Search  Warrant  (internal  revenue) 452 

under  act  of  Jul)'  10,  189 1, 454 

Service  of  citation, 675  627 

Stipulation  by  defendant   on  arrest  in  an  action  in 

personam, 593  569 

for  costs  by  claimant, 592  568 

for  costs  by  libellant  m /^rj<7waw, 591  568 

for  costs  by  libellant  in  a  suit  in  reniy 589  566 

for  release  of  vessel, 596  571 

for  the  safe  return  of  a  ship, 594  569 

reducing  record, 681  630 

to  submit  cause  on  printed  briefs, 267  220 

Subpoena  duces  tecum, 40  26 

for  witness 39  26 

for  witnesses  (criminal  practice), 447  400 

in  chancery, -33  22 

'  in  a  suit  by  one  state  against  another, 703  660 

of  witness  de  bene  esse, 23  16 

of  witness  to  testify  before  a  commissioner,     ...    20  15 

Suggestion  for  writ  of  prohibition, 707  665 

Summons  at  la^v, 29  21 

(preliminary)  for  seamen's  wages 627  593 

Supreme  Court. 

appellate  jurisdiction  {see  '^  Appellate  Proceedings"), 
original  jurisdiction. 

answer  in  the  supreme  court,      709  716 

bill  by   foreign   counsel   against   a   citizen   of  the 

United  States, 700  655 

by  one  state  against  another  to  settle  the  bound- 
ary,     701  655 

for  the  settlement  of  a  boundary  between  states 

(another  form), 702  6^6 

demurrer  for  want  of  jurisdiction, 572  674 

motion  to  dismiss  for  want  of  jurisdiction,  .    .    .    .711  674 

orders  and  decrees 714  676 


INDEX.  771 

Supreme  Court — Continued.                                       form  page 

petition  for  writ  of  prohibition 705  661 

plea 713  675 

return  of  service  of  subpoena  on  a  state,      ....  704  660 
rule  to  show  cause  why  writ  of  prohibition  should 

not  issue, 708  673 

subpoena  in  a  suit  by  one  state  against  another,     .  703  660 

suggestion  for  writ  of  prohibition 707  665 

verification  of  a  pleading  in  the  supreme  court,     .  710  674 

of  petition, 706  665 

writ  of  prohibition,  petition  for, 705  661 

suggestion  for 707  665 

Surety  to  bond,  justification  of,     .......  36,  440  23,  395 

Temporary  injunction, 226  202 

mittimus  from  court, 502  484 

mittimus  from  commissioner, •   .    .    .  442  367 

recognizance, 439  394 

Teste  for  writs  issuing  from  a  district  court,  ....    30  21 
for  writs  issuing  from  the  supreme  court,  a  circuit 

court  of  appeal,  or  a  circuit  court, 31  22 

Trademarks       {^See  ''Copyrights^) 

Transcript  from  commissioner, 450  402 

Transfer  to  trustees, 623  590 

Transmission  of  the  depositions, 26  18 

Undertaking  in  attachment,      50  34 

Venire  for  jury,      56  38 

Verdict,  guilty, 518  494 

guilty  to  part  of  the  counts  only, 519  495 

not  guilty, 520  495 

Verification  of  answer, 85-188  146-80 

of  bill,      85  53 

of  declaration 409  363 

of  demurrer, 133  146 

of  petition  in  supreme  court, 706  665 

of  petition  of  removal, 636  599 

of  petition  of  removal  by  revenue  ofl&cers  in  civil 

case,      648  609 

of  petition  of  removal  by  revenue  oflScers  in  a  crim- 
inal case,      646  608 

of  plea 133  146 


772 


INDEX. 


Verification— Continued.                                              form  page 
of  pleadings.     {See  "Oaf/t.") 

of  a  pleading  in  the  supreme  court, 716  674 

of  writ  of  certiorari, 698  654 

Warrant  of  arrest, 43^  394 

of  restitution, 597  575 

Writs— 

in  admiralty, 55  37 

in  equity, 230  202 

of  assistance, 57  3^ 

of  attachment 5^  35 

of  attachment  to  compel  answer, 228  201 

of  certiorari, ^5  43 

of  certiorari  to  circuit  court  of  appeals, 685  631 

of  error, 663  619 

of  error  to  a  state  court 664  620 

of  error  to  the  U.  S.  supreme  court 58  39 

oi  fieri  facias, 47  32 

ol  habeas  corpus  ad  testificandum, 5^7  494 

of  habeas  corpus, 526  50*^ 

of  injunction,      ^^  4^ 

of  injunction  in  patent  cases, 62  42 

of  ne  exeat  republica, 66  43 

of  possession, 57  3^ 

of  prohibition,  petition  for,      705  661 

of  scire  facias  to  revive  a  judgment,      53  3^ 

of  seizure  in  admiralty, 600  574 

of  seizure  in  revenue  cases, 54  37 

of  venire  for  grand  jury,      4^8  418 

return  of, 32  22 

/^;y/^for, 30.31  21 

vendi  exponas, 4°  33 


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UNIVERSITY  OF  CALIFORNU 


REGIONAL  LIBRARY  FAaUTV 


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